                                NOT FOR PUBLICATION WITHOUT THE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-5821-17T1

TWIN CITIES MANAGEMENT,
LLC,

         Plaintiff-Appellant/
         Cross-Respondent,

v.

ABID IGBAL and IGGY
MANAGEMENT, LLC,

     Defendants-Respondents/
     Cross-Appellants.
____________________________

                   Argued March 2, 2020 – Decided April 23, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Camden County, Docket No. L-4316-
                   15.

                   William C. Mac Millan argued the cause for
                   appellant/cross-respondent (Law Offices of Igor
                   Sturm, attorneys; William C. Mac Millan, on the
                   briefs).
            Michael James Confusione argued the cause for
            respondents/cross-appellants (Hegge & Confusione,
            LLC, attorneys; Michael James Confusione, of
            counsel and on the brief).

PER CURIAM

      Plaintiff Twin Cities Management, LLC (Twin Cities), appeals from a

March 27, 2018 judgment entered after a jury found in favor of defendant Abid

Iqbal (Iqbal); and two orders dated July 20, 2018, denying plaintiff's motions

for a new trial and reimbursement of counsel fees under Rule 4:5-1(b)(2), for

Iqbal's and defendant's Iggy Management, LLC (Iggy), failure to disclose a

related litigation in New York. Defendants cross-appeal from that part of the

judgment stating that defendants had no ownership interest in Twin Cities. We

affirm but remand on the fee issue.

Brothers Ashish and Amish Parikh (collectively the Parikhs) and Iqbal dispute

ownership of Twin Cities. The Parikhs formed Twin Cities to acquire and

operate Popeyes franchise restaurants in Minnesota. The parties' Memorandum

of Understanding (MOU) addressed circumstances under which Iqbal could

obtain an ownership interest in Twin Cities. After a breakdown in the parties'

relationship, plaintiff sought a declaratory judgment that defendants had no

ownership interest in Twin Cities or monies owed to them. Defendants filed

counterclaims asserting an ownership interest in Twin Cities and claims for

                                                                      A-5821-17T1
                                      2
monies owed as profit-sharing and wages. The jury found that: (1) Iqbal had

no ownership interest in Twin Cities; and (2) plaintiff owed Iqbal $421,197, the

amount Iqbal paid for an ownership interest in the company, plus $10,000 in

unpaid salary.

On appeal, plaintiff argues the verdict was against the weight of the evidence,

the judge erred by denying its motion for a new trial, and the judge misapplied

Rule 4:5-1(b)(2). On cross-appeal, defendants argue the judge erroneously

charged the jury by stating Iqbal had the burden of proving oral modifications

to the MOU by clear and convincing evidence, and that the judge committed

plain error by not sua sponte awarding them pre-judgment interest.

                                        I.

      The Parikhs have been in business together since 2006, owning and

operating Popeyes franchise restaurants.     They started their business using

money loaned to them by their father, who had operated Dunkin Donuts

franchises. As of 2011, they operated between eighty-five and ninety restaurants

nationwide.

      Popeyes approved the Parikhs' franchise application after they satisfied its

criteria for financial liquidity and operational experience.     After obtaining

approval, the Parikhs agreed to operate the restaurants in accordance with


                                                                         A-5821-17T1
                                        3
Popeyes' standards, understanding that Popeyes would perform periodic audits

to ensure compliance and that failing an audit could result in loss of franchise.

Iqbal worked for the Parikh's father, who previously employed him as a Dunkin

Donuts manager. Iqbal met with the Parikhs and discussed opportunities for

working together.

      In 2011, Popeyes planned to redevelop some Kentucky Fried Chicken

restaurants in Minnesota, and it solicited proposals from top franchisees for this

opportunity⸻referred to as the "Viking Project." The Parikhs submitted a

business plan for the Viking Project, and on December 6, 2012, they created

Twin Cities, through which they proposed to own and operate the Minnesota

restaurants. Each of the restaurants would be its own separate company⸻owned

by Twin Cities⸻of which the Parikhs were each fifty-percent owners. The

Parikhs discussed the Viking Project with Iqbal and Iqbal's friend, Iftikhar Ali

(referred to as Gilani), who also worked for the Parikhs' father. The Parikhs

offered Iqbal and Gilani the opportunity to jointly operate the Minnesota

franchises and become fifteen-percent owners of Twin Cities.

      On January 15, 2013, the Parikhs and Iqbal entered into the MOU, which

described the conditions under which Iqbal could obtain the fifteen-percent

ownership interest and be responsible for the day-to-day operations of the twelve


                                                                         A-5821-17T1
                                        4
franchised Popeyes locations in Minnesota.1 The same day, the Parikhs and

Gilani entered into the MOU with the same terms. The MOU explains the

Parikhs' relationship with Popeyes and the costs that the Parikhs incurred on the

Viking Project.

                  [The Parikh's] are approved franchisees of
            [Popeyes]. Popeyes is the owner of twelve (12)
            locations in the state of Minnesota, which are
            proposed to become "Franchised Restaurant
            Locations" . . . . Popeyes has offered to [the Parikhs]
            the privilege of becoming the operators of the
            Franchised Restaurant Locations under a lease and/or
            sublease for each location under certain terms and
            conditions which have been accepted by the Parikhs.
            The Parikhs have paid to [Popeyes] the sum of
            $750,000[], representing a $12,500[] development fee
            for each Franchised Restaurant Location, for a total of
            $150,000[] and a $50,000[] conversion deposit for
            each Franchised Restaurant Location which totals
            $600,000[] . . . . Thereafter, prior to the opening of
            each Franchised Restaurant Location, a remaining
            $125,000[] conversion fee and a $30,000[] franchise
            fee will be due and payable.

                    [The Parikhs], for the purpose of this transaction
            . . . formed [Twin Cities] in which [the Parikhs] each
            hold a fifty percent (50%) membership interest. For
            each of the twelve (12) Franchised Restaurant
            Locations . . . the Parikhs and/or [Twin Cities] shall
            form Minnesota limited liability companies each to
            operate their [Popeyes restaurants] under a lease or
            sublease agreement with [Popeyes]. Each of the

1
  Initially there were twelve restaurants in Minnesota. However, the number
grew to fourteen.
                                                                         A-5821-17T1
                                        5
            twelve (12) specific entities shall be a franchisee for
            that location under a franchise agreement with
            [Popeyes]. [Twin Cities] shall be the sole member of
            each specifically formed limited liability company for
            a Franchised Restaurant Location.

Thereafter, the MOU set forth Iqbal's relationship with the Parikhs and the

Viking Project.

                  Iqbal has requested of the Parikhs the
            opportunity to become co-owner and co-operator of
            the Popeyes restaurant at each of the Franchised
            Restaurant Locations. The Parikhs and [Twin Cities]
            recognize the need for trusted and efficient
            management for each of the Popeyes locations in the
            State of Minnesota. The parties recognize that . . .
            Iqbal is not currently an approved franchisee of
            [Popeyes]. It is the joint desire by the Parikhs and by
            Iqbal to seek the approval of Iqbal as a franchisee of
            [Popeyes] for the benefit of the Franchised Restaurant
            Locations. By reason of Iqbal's experience and
            business know how, the Parikhs have agreed to admit
            Iqbal as a member in [Twin Cities] provided only if
            Iqbal is approved as a franchisee, with his admission
            only taking place after being approved by the
            franchisor.

                   Iqbal has requested of the Parikhs the
            opportunity to acquire a fifteen[-]percent (15%)
            membership interest in [Twin Cities] and to be
            admitted as a member, and further has agreed to be the
            day to day co-operator of the contemplated Popeyes
            restaurants at the Franchised Restaurant Locations,
            and [the] Parikhs have agreed to accept the offer of
            Iqbal, under the specific terms and conditions
            contained in this MOU.


                                                                      A-5821-17T1
                                       6
     The MOU expressed that all of the recitals under "Background" were the

MOU's conditions and provisions. And the MOU set forth Iqbal's financial

obligations, and the consequences of him becoming, or not becoming, an

approved franchisee.

           2.    Iqbal shall tender to [Twin Cities] the sum of
           $112,500[] representing fifteen percent (15%) of the
           amount heretofore paid to [Popeyes] under the above
           scenario.

           3.     At a time prior to the opening of each
           Franchised Restaurant Location, Iqbal shall tender to
           [Twin Cities] the sum of $27,000[] representing
           fifteen percent (15%) of the expenditure for the
           $125,000[] conversion fee, the $30,000[] franchise
           fee, and a $25,000[] anticipated expenditure for a
           SICOM Register System required for each Franchised
           Restaurant Location.

           4.     The tenders by Iqbal shall be retained by [Twin
           Cities] in escrow until Iqbal is approved by [Popeyes]
           as a franchisee for each or all of the Franchise
           Restaurant Locations. Should Iqbal not be approved
           as a franchisee by [Popeyes], then in that event, the
           tenders made by Iqbal shall be refunded to Iqbal
           without interest, and the understanding between them
           shall terminate and shall become of no legal effect.

           5.     Upon approval of Iqbal as a franchisee of
           [Popeyes] the Operating Agreement of [Twin Cities]
           shall be amended to reflect the interests of the
           admitted member.

                 ....


                                                                    A-5821-17T1
                                     7
7.     The Parikhs and Iqbal specifically agree that if
[Popeyes] does not approve Iqbal as a franchisee prior
to the opening for business of the first Franchised
Restaurant Location, then, in that event the Parikhs or
Iqbal shall have the right to terminate this MOU, or in
the alternative, continue with the understanding set
forth herein until such time as Iqbal is approved as a
franchisee. However, Iqbal shall not receive any
ownership interest in [Twin Cities] until such time as
he is approved as a franchisee by [Popeyes].

      In the event the franchisor [Popeyes] declines to
approve Iqbal as a franchisee, then upon such
declination the sums tendered by Iqbal shall be
refunded to Iqbal, without interest, and this
Understanding shall terminate, and become null and
void and of no further legal effect.

8.    The parties to this Agreement recognize that the
agreement to admit Iqbal as a member is for the
purpose of being a hands-on operating member
together with Gilani . . . of the twelve (12) Franchised
Restaurant Location. Iqbal covenants and agrees that
as a member of [Twin Cities] he will devote his full
time as to the operation of each of the Franchised
Restaurant Locations for the benefit of [Twin Cities]
o[n] a day to day basis. Iqbal further recognizes the
importance of [Twin Cities] to be and to remain in
good standing with the franchisor [Popeyes], without
the privileges granted to [Twin Cities] interrupted,
jeopardized or terminated, and he shall fulfill his
operational duties conscientiously and in good faith.

[9.] This [MOU] shall be interpreted and enforced
under the laws of the State of New Jersey and may
only be amended or modified in writing and signed by
all the parties.


                                                           A-5821-17T1
                           8
      Thus, under the MOUs' terms, Iqbal and Gilani would operate the

Minnesota restaurants and become fifteen-percent owners of the franchises, and

they would need to pay the Parikhs: $112,500 plus $27,000 per restaurant

($324,000 for twelve restaurants), totaling $436,500.

      Three days after executing the MOUs, on January 18, 2013, the Parikhs

signed a franchise agreement with Popeyes for a Minnesota restaurant. Pertinent

to the present case, the agreement required the franchisor's consent for any

transfer of ownership by the franchisee, and it stated that the agreement would

be terminated if any transfer occurred without the franchisor's consent. The

following month, in February 2013, the Parikhs entered into another agreement

with Popeyes, setting forth the Parikhs' financial obligations as to each of the

twelve Minnesota restaurants, with the Parikhs' costs corresponding to the

percentage costs charged to Iqbal and Gilani under their MOUs.

      At trial, Iqbal testified that his agreement with the Parikhs differed from

the terms of the written MOU. For example, he testified that his understanding

was that he became a part owner of Twin Cities when he executed the MOU.

He stated that he was treated as an owner in terms of signing paperwork on

behalf of the business and receiving distributions of profits⸻ which he used to

pay the amounts owed under the MOU on a schedule that was different than the


                                                                        A-5821-17T1
                                       9
MOU's schedule. Also, he was issued K-1 tax forms, which indicated that he

was an owner. Iqbal further testified that, notwithstanding the MOU's language,

he did not need to become an approved Popeyes franchisee to be a part owner

of Twin Cities. He also said that the Parikhs prevented him from becoming an

approved franchisee because they refused to submit the necessary paperwork

until he paid the entire capital contribution.

      At trial, plaintiff took the position that the parties' relationship was

governed by the MOU's terms. As to profit-sharing, the Parikhs admitted that,

from the beginning, they paid Iqbal fifteen percent of the Minnesota restaurants'

profits as a measure of good faith and in recognition of his moving from New

York to Minnesota. Moreover, they admitted that Iqbal was permitted to use the

profits for his required capital contributions because he did not have sufficient

funds to pay the amounts set forth in the MOU at the times the MOU mandated.

However, the Parikhs maintained that they shared profits with numerous

employees, either as an incentive for good work or in recognition for good

performance, and that they gave K-1s to everyone with whom they shared

profits. At his deposition, Ashish Parikh acknowledged that Iqbal should not

have received a K-1.




                                                                         A-5821-17T1
                                        10
      As to becoming an approved franchisee, plaintiff maintained that it was

Iqbal's responsibility to become an approved Popeyes franchisee, as set forth in

the MOU. The Parikhs claimed they reached out to Popeyes to advise the

company that Iqbal and Gilani wanted to become franchisees, and Popeyes

advised Iqbal and Gilani that they needed to complete applications. However,

the Parikhs had no involvement in the applications, and Iqbal never became an

approved franchisee. By contrast, Gilani became an approved franchisee in July

2013, after which he became a fifteen-percent owner of Twin Cities, because he

additionally paid his share of capital contributions.

      After the MOUs' executions, Iqbal and Gilani were trained in Popeyes

restaurant operations, as were Iqbal's sons and the Parikhs' relative, Sahill

Parikh. Thereafter, these individuals moved to Minnesota and worked to open

and manage the Minnesota restaurants. Over time, the Parikhs came to believe

Iqbal was not doing a good job managing the restaurants. The restaurants had

increasing costs, decreasing revenue, and missing deposits. Iqbal expressed

dissatisfaction with the Popeyes brand, and the Parikhs believed Iqbal was

spending most of his time in New York and leaving the restaurants' management

to others. Popeyes also expressed concern about the Minnesota operations due

to failed audits, and it threatened to close one of the restaurants.


                                                                       A-5821-17T1
                                        11
      One of the audits revealed underreporting of sales, which resulted in an

underpayment of royalties, and as a result, the Parikhs had to pay Popeyes

$49,297.    In addition, in 2013, the Parikhs learned that the Minnesota

Department of Labor was addressing complaints by restaurant employees. In

2014, they received notice of a class action lawsuit filed with respect to alleged

labor law violations at one of the Minnesota restaurants, which resulted in costly

legal fees and settlement funds. Iqbal denied the restaurants' poor management.

He testified that he worked long hours, and he denied responsibility for the

declining profits, failed audits, and labor litigation, and instead blamed

others⸻including Gilani, Sahill Parikh, Popeyes' suppliers, and Popeyes—for

problems with the restaurant renovations and the Parikhs' accounting errors.

      In July 2015, the Parikhs met with Iqbal and discussed his leaving the

business amicably, with a payout of any monies owed to him. Iqbal also wanted

out of the business at that time. However, he was unsatisfied with the Parikhs'

accounting of what he was owed, and he threatened a lawsuit. The Parikhs

claimed they terminated the business relationship with Iqbal on the date of that

meeting. But Iqbal asserted he continued to work in the restaurants until mid-

February 2016. At trial, the parties agreed that Iqbal was entitled to payment of

a certain amount of money⸻but they disagreed about the amount.


                                                                         A-5821-17T1
                                       12
      Iqbal claimed entitlement to a greater amount of profit distributions from

plaintiff than he had been allocated, although the amount he claimed he was

owed is difficult to discern from his testimony. 2 As to this issue, he maintained

that the Parikhs inappropriately reduced the Minnesota restaurants' reported

profits by wrongly charging for certain expenses, such as capital improvements,

management fees, and back-office services. He also claimed his profit-sharing

was understated because he was charged for money paid to another individual. 3

      Iqbal also claimed entitlement to unpaid wages. However, the amount is

unclear from his testimony. 4 It was undisputed that Iqbal received a salary in

2013. But Iqbal pointed to a period between December 11, 2012 and mid-March

2013, when he was in training but not paid. He also claimed he had been

promised a salary of $80,000 or $100,000⸻it was undisputed that he was paid

$60,000 per year. Iqbal also claimed he was not paid a salary between 2014 and


2
  Defense counsel discussed calculations in his summation, claiming that out
of $678,683 in profits, $84,793 was kept, leaving $593,890 paid over to the
Parikhs.
3
  On plaintiff's motion for judgment at trial, the judge limited the damages on
defendants' breach of contract claim to profits earned through December 31,
2015.
4
  In summation, defense counsel interpreted Iqbal's testimony and provided
the jury with calculations of back wages allegedly owed to Iqbal, based upon
an $80,000 salary and a $100,000 salary.
                                                                         A-5821-17T1
                                       13
mid-February 2016⸻the time he stopped working at the Minnesota restaurants,

but this was disputed.

      Specifically, by email dated December 29, 2013, Iqbal told the Parikhs to

stop paying salaries to him and Gilani, and the Parikhs complied. Iqbal asserted

that he was induced to stop taking a salary because he started working with the

Parikhs on another project, involving Dunkin Donuts franchises, as to which he

was assured a thirty-percent ownership interest.      By contrast, the Parikhs

suggested that Iqbal stopped taking a salary so he could receive compensation

in other ways, with fewer taxes owed.

      First, the Parikhs noted that the non-payment of salaries to Iqbal and

Gilani had the effect of increasing the businesses' profits, of which Iqbal

received a percentage share without any W-2 deductions.         Second, it was

undisputed that, starting in 2014, notwithstanding his declining salary, Iqbal

began receiving periodic payments from the businesses.            The Parikhs

characterized these payments as advances on future profit distributions.

However, Iqbal characterized these payments as non-recourse loans in lieu of a

salary, although he never reported these payments as income. Finally, testimony

showed that Iqbal received non-salary through his business, defendant Iggy

Management, LLC, which Iqbal formed on December 30, 2013. Thereafter,


                                                                        A-5821-17T1
                                      14
Iqbal reduced the taxes he owed on these payments to Iggy Management, LLC,

by taking deductions for business-related expenses and profit-sharing with his

sons.

        The Parikhs presented an accounting of monies allegedly paid to Iqbal and

monies paid by him towards a potential ownership interest in Twin Cities. Based

upon this accounting, they determined that plaintiff owed Iqbal $181,846. More

specifically, the Parikhs claimed Iqbal had been paid or was entitled to $411,197

in profit-sharing, which was applied to his capital contributions, including the

initial $112,500 payment owed under the MOU. 5 From that amount, the Parikhs

deducted $229,351 in distributions made to Iqbal in 2014 and 2015 and monies

taken from sales, and reached an amount due of $181,846. Addressing the

Parikhs' calculations, Iqbal agreed that $411,197 was applied to his capital

contribution to plaintiff, but said it was money he had never received. He further

claimed that he paid at least $700,000 toward the Twin Cities deal. 6




5
  Under the MOU, Iqbal needed to pay $112,500, plus $27,000 per restaurant
($324,000 for twelve restaurants), totaling $436,500.
6
  In summation, defense counsel claimed Iqbal was entitled to $593,890 in
profit-sharing paid over to the Parikhs, plus $42,853 in wages, totaling
$782,943.
                                                                         A-5821-17T1
                                       15
                                        II.

      We begin by addressing plaintiff's argument that the jury's damages

verdict was inconsistent, illogical, and against the weight of the evidence.

Plaintiff contends that the jury miscalculated the amount of the damages it

awarded to Iqbal.    We conclude there is nothing inconsistent, illogical, or

irreconcilable about the jury's calculations.

      A jury's verdict "is entitled to very considerable respect."      Baxter v.

Fairmont Food Co., 74 N.J. 588, 597 (1977). In considering whether a jury

verdict, including a damages award, is against the weight of the evidence, we

should not reverse unless we are clearly convinced, giving due regard to the

jury's opportunity to assess the credibility of all evidence, that there has been a

miscarriage of justice under the law. R. 2:10-1; Cuevas v. Wentworth Grp., 226

N.J. 480, 501 (2016); Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506,

521-22 (2011); Baxter, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 6-7

(1969).   The court should carefully weigh the evidence, but it should not

substitute its judgment for that of the jury. Dolson, 55 N.J. at 6. The object of

a reversal would be "to correct clear error or mistake by the jury." Ibid.

      The jury answered several questions related to defendants' damages. As

to Question One on the verdict sheet, the jury answered "yes" on whether Iqbal


                                                                          A-5821-17T1
                                       16
paid the initial required payment of $112,500. Answering Question Two, the

jury found that defendant paid $298,697 towards the additional required

$324,000 payment of $27,000 for each of the twelve franchise restaurants.

Answering Question Fourteen, the jury added these numerical responses and

found that plaintiff owed Iqbal $411,197 pursuant to the MOU. As to Question

Three, the jury concluded that the MOU had been orally modified to permit

defendants to pay any remaining money out of his share of profits. Thereafter,

answering Question Nine, the jury found that Iqbal was entitled to receive

$334,889 in profit-sharing. Answering Question Eleven, the jury found that

$234,282 of the profit-sharing was applied as a credit owed under the MOU.

And answering Question Ten, the jury found that $100,607 of the profit-sharing

was not applied as a credit owed under the MOU. On Questions Twelve and

Thirteen, the jury found that Iqbal never received any withdrawals or advances

against profit-sharing, nor did he receive any loans from plaintiff. Finally,

answering Question Eighteen, the jury concluded that defendants had not been

paid the $10,000 in salary that was owed.

      Thus, when the jury awarded defendants $411,197 in damages pursuant to

the MOU, it reached that amount by adding the $112,500 initial payment Iqbal

made (Question One), plus $298,697 Iqbal paid toward the $27,000 per


                                                                      A-5821-17T1
                                     17
restaurant that he was obligated to pay (Question Two). The $411,197 damage

award also corresponds to a figure set forth on one of plaintiff's trial exhibits, in

which plaintiff calculated the amount it allegedly owed to defendants.

Specifically, the jury added:        (1) Contributions made and 2013 profit

distributions ($258,522), plus (2) share of profit entitlement for 2014

($122,260), plus (3) share of profit entitlement for the period of January 1, 2015

through July 13, 2015 ($30,415), totaling $411,197. Finally, this damages

award also corresponded to the testimonies of Ashish Parikh and Iqbal, with

both men agreeing that Iqbal contributed at least this amount toward his

financial obligation under the MOU.

      In denying plaintiff's motion for a new trial, the judge found that the

verdict "fell within a reasonable range which a jury could have reached based

upon the evidence by both sides in this case," and it did not shock the conscience.

The judge found the $411,197 damages award consistent with the total amount

the jury found that Iqbal contributed towards an ownership interest in Twin

Cities ($112,500 plus $298,697). As for the award of $10,000 in wages, the

judge found that it most likely related to the period in early 2013, when Iqbal

testified that he was not being paid. Finally, as for the other jury calculations

on the verdict sheet, the judge noted that the evidence as to payments made or


                                                                            A-5821-17T1
                                        18
withheld from Iqbal was hotly contested relating to amount and purpose (e.g.,

profit-sharing, wages, or non-recourse loans), and neither side presented strong

evidence on that issue. Thus, the jury made its own calculations, both accepting

and rejecting testimony presented by each side, which it was entitled to do.

      The evidence supports the jury's calculation of damages. At trial, the

parties agreed that Iqbal made at least $411,197 in capital contributions.

Plaintiff argued that this amount should be reduced to account for monies Iqbal

owed, while Iqbal argued he was entitled to more, based upon plaintiff's alleged

failure to properly account for profits and losses, and thus its failure to pay him

his fair share of profits and all wages owed. However, the jury was entitled to

reject the parties' calculations and resolve the damages amount based upon the

amount the parties agreed upon for capital contributions and to reach its own

calculation of lost wages. See, e.g., State v. Muhammad, 182 N.J. 551, 577

(2005) (stating that the jury is not bound to believe testimony of any witness).

The jury also reasonably found that plaintiff owed Iqbal $10,000 in back pay.

The parties agreed that Iqbal was not paid until March 2013, although Iqbal

claimed entitlement to wages back to December 2012. The parties also disputed

whether Iqbal was compensated for his work in 2014 and thereafter. As the




                                                                          A-5821-17T1
                                       19
judge found, the $10,000 figure corresponds closely with what Iqbal alleged

plaintiff owed him for his work in 2013.

                                       III.

      Plaintiff argues that a new trial on damages is warranted because

defendants' counsel made improper remarks throughout the trial. 7 Plaintiff did

not object to all of the comments raised on appeal, particularly those comments

that defendants' counsel made in summation. We see no error that warrants the

judgment's reversal.

      Plaintiff complains that on cross-examination, defense counsel referred to

Ashish Parikh as a "very wealthy man." Its counsel immediately objected to this

comment, and the judge sustained the objection and advised the jury to

"disregard the comments of counsel." We have no reason to believe that the jury

did not follow that instruction.

      Plaintiff complains that, in a move orchestrated by defense counsel, Iqbal

falsely testified that the Parikhs had criminal records. Its counsel immediately

objected to this testimony and moved for a mistrial. The judge denied the motion



7
  We address the comments about which plaintiff complains in its initial
appellate brief. It raised additional comments in its reply brief, however, it is
inappropriate to raise new issues in a reply brief. Borough of Berlin v.
Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001).
                                                                          A-5821-17T1
                                       20
but sustained the objection and issued a cautionary instruction to the jury,

stating: "[T]here is absolutely no evidence in this case that any of the witnesses

or parties have any criminal record[s]. And you are to disregard any testimony

to the contrary in this case." The jury followed that instruction.

      The judge rejected plaintiff's contention that the comments, including

those made by defendants' counsel in summation to which there was no

objection, did not warrant a new trial. The judge stated:

                   Defense counsel here did on at least a couple of
            occasions go beyond the permissible bounds of
            argument, impermissibly expressing his personal
            belief. No objection was raised at the time this
            occurred, which would have allowed the [c]ourt to
            give an appropriate cautionary instruction at that time.

                   The comments, which were relatively brief and
            fleeting, the [c]ourt notes, were extremely unlikely to
            have any prejudicial impact on the jury.

                  More importantly, to ensure that there was no
            prejudicial effect, the [c]ourt emphasized in the jury
            charge the caution that the statements and comments
            of counsel were not evidence.

                  It's the [c]ourt's belief that this eliminated any
            potential prejudice as a result of the comments by
            defense counsel.

                  The [c]ourt also notes that there's nothing here
            about the verdict in this case which shocks the
            conscience.


                                                                         A-5821-17T1
                                       21
                  Rather, the verdict fell within a reasonable range
            which a jury could have reached based upon the
            evidence by both sides in this case.

Counsel are expected to zealously advocate for their clients. At the same time,

they may not misrepresent the evidence, and "it is improper for an attorney to

make derisive statements about parties, their counsel, or their witnesses."

Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010);

accord RPC 3.4(e); Risko, 206 N.J. at 522-23; Geler v. Akawie, 358 N.J. Super.

437, 463-64, 467 (App. Div. 2003); Rodd v. Raritan Radiologic Assocs., P.A.,

373 N.J. Super. 154, 171 (App. Div. 2004).

      Here, the remarks that plaintiff complains of on appeal were either struck

from the record upon plaintiff's counsel's objections or were not objected to by

plaintiff's counsel at trial, indicating that counsel did not deem them prejudicial.

Risko, 206 N.J. at 523. As to the comments in summation, the judge instructed

the jurors that counsel's arguments were not evidence, and they must rely upon

their own review of the record in reaching their verdict. The jury is presumed

to have followed the judge's instructions. State v. Santamaria, 236 N.J. 390,

412-13 (2019).




                                                                           A-5821-17T1
                                        22
                                        IV.

      Plaintiff argues that the judge erred by denying its post-trial motion for

counsel fees and costs based upon Iqbal's failure to disclose related litigation in

New York, as required under Rule 4:5-1(b)(2). Defendants' appellate counsel

concedes that trial counsel should have reported the New York litigation, but

argues that the judge did not abuse his discretion in declining to award counsel

fees. On this issue, we reverse and remand for further proceedings consistent

with this opinion.

      In the New York litigation, Iqbal sought the same relief he seeks in the

present litigation, based upon the same set of facts. The named defendants in

the New York litigation were Ashish Parikh, Amish Parikh, and Prabodh Parikh

(the Parikhs' father), individually and as owners of the Parikh Network. Plaintiff

filed this complaint in November 2015, more than two years before Iqbal filed

the New York litigation. Additionally, this case was tried in March 2018, three

months after Iqbal filed the New York litigation.

      The judge found that in the New York action, Iqbal sought the same relief

in the present action, based upon the same set of facts. Defense counsel clearly

violated Rule 4:5-1(b)(2) by failing to disclose the New York litigation. In

denying the motion, the judge stated:


                                                                          A-5821-17T1
                                        23
      It's crystal clear to the [c]ourt that . . . defendant
violated the provisions of Rule 4:5-1(b)(2), failing to
notify the [c]ourt or the opposing party, in . . . this
action, the pendency of the New York suit.

      ....

      With respect to the second portion of the relief
sought by [p]laintiff, the [c]ourt concludes that it does
not have jurisdiction to enter a decision with respect to
an action pending in New York.

      The [c]ourt happens to agree that had the same
action been filed in this [c]ourt, both the entire
controversy and the doctrine of collateral estoppel
would bar the New York suit in its entirety.

      The problem is that New Jersey doesn't have the
power to order such a finding by the New York courts,
and that's an application that must be addressed in the
New York courts.

      Rule 4:5-1(b)(2) does provide that the [c]ourt
may impose an appropriate sanction, including
dismissal of the successive action. Obviously . . . the
sanction of dismissal of the successive action is not
something this [c]ourt can address since this [c]ourt
doesn't have jurisdiction over that action.

      The conduct of counsel for defendant here is the
type of practice condemned by the Appellate Division
in [Simmermon v. Dryvit Systems, Inc., 196 N.J. 316,
334 (2008)].

      The Appellate Division there, however,
recognized that in dealing with cases pending in
different jurisdictions, here the other jurisdiction, New


                                                               A-5821-17T1
                            24
             York, must make the decisions and not a New Jersey
             court.

                    The improper conduct here appears to have been
             a tactical decision seeking to gain an unfair advantage.
             Nevertheless, it does not appear to have resulted in
             any additional costs being incurred in the New Jersey
             action.

                      Rather, the additional costs being incurred by
             [p]laintiff, or the principals thereof, are being incurred
             . . . in the New York action and not in the New Jersey
             action.

                   The [c]ourt also notes that while the Parikhs . . .
             were principals and testified here, of Twin Cities, they
             were not parties here. Any compensation for expenses
             being incurred by those individuals it seems to the
             [c]ourt must be addressed by the New Jersey courts.

                   Accordingly, because the successive action is
             not pending in New Jersey, the [c]ourt will deny the
             motion.

We review the judge's ruling for an abuse of discretion. Karpovich v. Barbarula,

150 N.J. 473, 483 (1997) (holding that violation of Rule 4:5-1(b)(2) does not

mandate dismissal of second litigation; "[r]ather, a court must exercise its

discretion and consider the purposes of the entire controversy doctrine before

barring a subsequent action").

      Rule 4:5-1(b)(2) requires disclosure of related actions. It provides, in

pertinent part:


                                                                          A-5821-17T1
                                        25
             Each party shall include with the first pleading a
             certification as to whether the matter in controversy is
             the subject of any other action pending in any court
             . . . or whether any other action . . . is contemplated;
             and, if so, the certification shall identify such actions
             and all parties thereto. Further, each party shall
             disclose in the certification the names of any non-
             party who should be joined in the action . . . or who is
             subject to joinder . . . because of potential liability to
             any party on the basis of the same transactional facts.

      Moreover, the Rule's disclosure obligation is a continuing one: "Each

party shall have a continuing obligation during the course of the litigation to file

and serve on all other parties and with the court an amended certification if there

is a change in the facts stated in the original certification[.]" R. 4:5-1(b)(2).

      In terms of sanctions for failing to make the required disclosure, the Rule

provides:

             If a party fails to comply with its obligations under
             this rule, the court may impose an appropriate
             sanction including dismissal of a successive action
             against a party whose existence was not disclosed or
             the imposition on the noncomplying party of litigation
             expenses that could have been avoided by compliance
             with this rule. A successive action shall not, however,
             be dismissed for failure of compliance with this rule
             unless the failure of compliance was inexcusable and
             the right of the undisclosed party to defend the
             successive action has been substantially prejudiced by
             not having been identified in the prior action.

             [Ibid. (emphasis added).]


                                                                           A-5821-17T1
                                         26
      The courts are charged with enforcing this Rule, the goal of which is to

avoid "piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds,

Co., 207 N.J. 428, 444-45 (2011); see also Gelber v. Zito P'ship, 147 N.J. 561,

567-68 (1997).    "Although the Rule specifies dismissal and imposition of

litigation costs as two enforcement mechanisms, they are not the only sanctions

available to the court. Rather, the clear language also broadly authorizes the

court to 'impose an appropriate sanction.'" Kent Motor Cars, 207 N.J. at 445

(quoting R. 4:5-1(b)(2)).

      For example, in Simmermon, 196 N.J. at 334-35, the Court found that the

defendant made a tactical decision to violate Rule 4:5-1(b)(2) by not notifying

the court of a class action litigation pending in Tennessee until the opt-out

deadline expired and the settlement was approved, thereby precluding the

plaintiff's New Jersey litigation. The Court held that the defendant's violation

of Rule 4:5-1(b)(2) did not warrant a refusal to give full faith and credit to the

judgment in the class action suit. Id. at 336. Instead, the Court found that the

plaintiff should seek relief from the judgment in Tennessee. Id. at 336-38.

      On the other hand, the Court found that it was "only fair that [the

defendant] be held responsible for those litigation expenses, including attorneys'




                                                                         A-5821-17T1
                                       27
fees, that would not have been incurred by [the] plaintiff had [the defendant]

filed a timely certification." Id. at 335. More specifically, the Court stated:

            [The defendant] will be responsible for all litigation
            expenses, including attorneys' fees, incurred by [the]
            plaintiff in seeking relief from the Tennessee
            judgment. If [the] plaintiff applies for relief in
            Tennessee and is not excluded as a class member from
            the settlement and the Tennessee judgment remains in
            effect, then the Law Division in this state must give
            preclusive effect to that judgment. In such case, [the
            defendant] will also be responsible for all litigation
            expenses, including attorneys' fees, incurred by [the]
            plaintiff from the time it breached Rule 4:5-
            1(b)(2)⸻March 15, 2002, the date that [the defendant]
            filed an answer without the required certification.

                    If Tennessee excludes [the] plaintiff from the
            class action settlement, he then may proceed with his
            remaining New Jersey claims. In such case, because
            the appeals to the Appellate Division and this Court
            clearly could have been avoided had [the defendant]
            filed the required Rule 4:5-1(b)(2) certification, the
            trial [judge] is directed to impose the litigation
            expenses, including attorneys' fees, incurred by [the]
            plaintiff in those appeals. The trial [judge] will also
            determine all other such litigation expenses incurred
            by [the] plaintiff at the pretrial stage that are
            attributable to the violation of the [Rule]. Under that
            scenario, [the defendant] would not be liable for
            litigation expenses for pretrial work, such as
            depositions and motions, related to the substantive
            claims advanced by [the] plaintiff.

            [Id. at 338-39.]



                                                                          A-5821-17T1
                                       28
See also Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co. v. Pa. Mfrs. Ass'n

Ins. Co., 425 N.J. Super. 305, 326-28 (App. Div. 2012) (affirming verdict in

second litigation, for defense costs in underlying action, because in the

underlying action "the parties and their attorneys entered into an intentionally

ambiguous agreement and both sides failed to comply with [Rule 4:5-1(b)(2)]").

      Here, in denying sanctions, the judge seemed to be under the

misapprehension that the only sanction available was dismissal of the New York

action, which it did not have jurisdiction to grant. However, that clearly was

not the case. Rule 4:5-1(b)(2) permits the judge to determine an appropriate

sanction depending upon the circumstances. In this case, for example, the judge

could have awarded plaintiff the counsel fees and costs associated with the

motion for sanctions. Moreover, consistent with Simmermon, the judge could

have ruled that, if plaintiff moved to dismiss the New York litigation on res

judicata and entire controversy grounds, and the New York court denied the

motion, then the judge would consider the New York court's decision and

defendant would potentially be held responsible for plaintiff's litigation costs in

New Jersey from the date of defendant's violation of the Rule⸻at the very least,

the date the complaint was filed in New York. We therefore reverse and remand

for the judge to reconsider the sanction question.


                                                                          A-5821-17T1
                                       29
                                        V.

      In their cross-appeal, defendants contend the judge erred by instructing

the jury that oral modifications to a contract must be proven by clear and

convincing evidence. They argue, therefore, that a new trial should be ordered

on Iqbal's claim of a fifteen-percent ownership interest in Twin Cities. We

conclude the judge erred, but this error does not warrant the judgment's reversal

because the jury determined that Iqbal had not made the required financial

contributions to become a fifteen-percent owner of Twin Cities. Therefore, his

claim to an ownership interest in Twin Cities fails, regardless of the error.

      Plaintiff's counsel argued that a clear and convincing standard applied to

modifications of a written contract, where the written contract provides only for

written modifications, not oral modifications. Defense counsel objected, stating

that the case law plaintiff cited to only talked about "clear conduct," and "[n]ot

necessarily clear and convincing evidence." However, defense counsel also

stated: "[I]f that's what the law is, then I have to live with it. But I don't have

to just say okay because they say so." The judge agreed with plaintiff's argument

and gave the clear and convincing evidence charge as requested.

      The judge charged the jury, in pertinent part, as follows:

                  With regard to the claimed oral modification of
            the written contract, which is the [MOU], it is the

                                                                          A-5821-17T1
                                       30
            obligation of the party claiming a modification to
            prove those allegations by clear and convincing
            evidence. Clear and convincing evidence is evidence
            that produces in your minds a firm belief or conviction
            that the allegations sought to be proved by the
            evidence are true. It is evidence so clear, direct,
            weighty in terms of quality, and convincing as to
            cause you to come to a clear conviction of the truth of
            the precise facts in issue. The clear and convincing
            standard of proof requires that the result shall not be
            reached by a mere balancing or doubts or
            probabilities, but rather by clear evidence which
            causes you to be convinced that the allegations sought
            to be proved are true.

Thereafter, the judge repeated the clear and convincing evidence standard when

reciting the elements of defendant's cause of action for breach of an oral

modification of the contract, and as to defendant's specific allegation of an oral

modification.

      In Question Three on the verdict sheet, the jury found that Iqbal proved

one oral modification of his contract with plaintiff, that is, for him to make his

required payments through profit distributions.          Plaintiff conceded this

modification at trial. But the jury also found, as reflected on the verdict sheet:

            4. Under the terms of the [MOU], was [Iqbal]
            required to be approved as a franchisee by [Popeyes]
            before he was permitted to receive a [fifteen-percent]
            ownership interest in [Twin Cities]?

            YES      X                No _____                 (7-1)


                                                                          A-5821-17T1
                                       31
            5. Was [Iqbal] ever approved as a franchisee of
            [Popeye's]?

            YES                     No     X                  (8-0)


            6. Did the conduct of [Twin Cities] prevent [Iqbal]
            from becoming an approved franchisee of [Popeye's]?

            YES                     No     X                  (7-1)

                  ....

            8. Did [Iqbal] comply with all conditions required for
            him to receive [fifteen-percent] ownership interest in
            [Twin Cities] in accordance with the terms of the
            [MOU] and any agreed upon modifications to that
            agreement?

            YES                     No     X                  (8-0)

                  ....

            15. Did [Twin Cities] breach the [MOU] to provide
            [Iqbal] with a [fifteen-percent] ownership in [Twin
            Cities]?

            YES                     No     X                  (7-1)

      "[I]t is fundamental that the jury charge should set forth in clear

understandable language the law that applies to the issues in the case." Toto v.

Ensuar, 196 N.J. 134, 144 (2008); accord Estate of Kotsovska ex rel. Kotsovska

v. Liebman, 221 N.J. 568, 591 (2015); Mogull v. CB Commercial Real Estate

Grp., 162 N.J. 449, 464 (2000). In considering a trial judge's jury charge, a

                                                                       A-5821-17T1
                                      32
reviewing court must read the charge as a whole to determine if it was correct.

Toto, 196 N.J. at 144; Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418

(1997). We do not reverse "where the charge adequately conveys the law and

does not confuse or mislead the jury." Sons of Thunder, 148 N.J. at 418.

However, even erroneous jury instructions do not require reversal where the

instructions were incapable of producing an unjust result or prejudicing

substantial rights. Ibid.; accord Toto, 196 N.J. at 144.

      In general, a contract is formed where there is an offer and acceptance

between the parties. Morton v. 4 Orchard Land Tr., 180 N.J. 118, 129-30 (2004).

After formation, the contracting parties "may, by mutual assent, modify it."

County of Morris v. Fauver, 153 N.J. 80, 99 (1998). "A contract modification

is 'a change in one or more respects which introduces new elements into the

details of a contract and cancels others but leaves the general purpose and effect

undisturbed.'" Wells Reit II-80 Park Plaza, LLC v. Dir., Div. of Taxation, 414

N.J. Super. 453, 466 (App. Div. 2010) (quoting Int'l Bus. Lists, Inc. v. Am. Tel.

& Tel. Co., 147 F.3d 636, 641 (7th Cir. 1998)).

      Generally, modifications to a written contract are not required to be made

in writing. To the contrary, a "modification can be proved by an explicit

agreement to modify, or . . . by the actions and conduct of the parties, so long as


                                                                          A-5821-17T1
                                       33
the intention to modify is mutual and clear." County of Morris, 153 N.J. at 99;

accord Wells Reit, 414 N.J. Super. at 466; DeAngelis v. Rose, 320 N.J. Super.

263, 280 (App. Div. 1999). However, an agreement to modify a contract "must

be based upon new or additional consideration." County of Morris, 153 N.J. at

100. The consideration need not be significant; whatever consideration the

parties agree to is sufficient. Oscar v. Simeonidis, 352 N.J. Super. 476, 485

(App. Div. 2002).

      The model jury charge on contract modifications does not set forth a clear

and convincing standard of proof. Model Jury Charges (Civil), 4.10I "Bilateral

Contracts – Modification" (approved May 1998).          However, the clear and

convincing standard of proof applies to a limited number of contract claims,

including where a statute requires a contract for the transfer of real property be

in writing. See, e.g., N.J.S.A. 25:1-12; N.J.S.A. 25:1-13; Morton, 180 N.J. at

125-26; Tiedemann v. Cozine, 297 N.J. Super. 579, 582 (App. Div. 1997); Aiello

v. Knoll Golf Club, 64 N.J. Super. 156, 160-61 (App. Div. 1960). See also

N.J.S.A. 2A:81-2 (requiring proof by clear and convincing evidence to establish

agreement with individual who is mentally incapacitated).

      On appeal, as it did before the judge, plaintiff relies on these land

transfer/statute of fraud cases.      Plaintiff also relies on Home Owners


                                                                         A-5821-17T1
                                       34
Construction Co. v. Borough of Glen Rock, 34 N.J. 305, 316-17 (1961), a public

construction contract case, in which the Court required clear and convincing

proof for oral modifications of the contracted work. However, that case did not

purport to establish a general rule requiring clear and convincing proof for all

alleged oral modifications of written contracts.

      "As a general rule, the preponderance of the evidence standard applies in

civil actions." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006). The

clear and convincing evidence standard is more stringent than the preponderance

of the evidence standard. It "establishes a standard of proof falling somewhere

between the ordinary civil and criminal standards" of preponderance of the

evidence and beyond a reasonable doubt. Aiello, 64 N.J. Super. at 162; accord

Land, 186 N.J. at 169-70. Evidence is clear and convincing when it "produce[s]

in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established." Aiello, 64 N.J. Super. at 162.

      Here, there was no statutory requirement that the parties' contract be in

writing, nor was there any statutory requirement imposing a clear and

convincing evidence standard for oral contract formation or modification.

Therefore, the judge erred by charging the jury that the MOU's oral

modifications must be proven by clear and convincing evidence. Absent a clear


                                                                          A-5821-17T1
                                       35
and convincing evidence standard, the jury might have found in defendants'

favor on the oral modification claim.        Typically, that would require the

judgment's reversal and a new trial.

      On the record presented, however, we conclude the error was harmless in

light of the jury's finding that Iqbal had not fulfilled the conditions necessary to

become a fifteen-percent owner of Twin Cities. It was undisputed that one of

those conditions was making the necessary financial contributions, and the jury

concluded that Iqbal had contributed less than the required amount. Thus, even

if the jury found that the contract had been orally modified to eliminate this

requirement of becoming an approved Popeyes franchisee, Iqbal still was not

entitled to a fifteen-percent ownership interest in Twin Cities because the jury

found he had not made the required financial contributions.

      Furthermore, the alleged oral modification is not supported by the

evidence at trial, even applying a preponderance of the evidence standard. Iqbal

presented no evidence that plaintiff agreed to an oral modification of the MOU,

such that he could become a part owner of Twin Cities without becoming an

approved Popeyes franchisee, nor did he present any evidence as to an exchange

of new or additional consideration for this alleged oral modification of the

MOU. Thus, he did not provide the required evidence for an oral modification


                                                                           A-5821-17T1
                                        36
of contract claim, no matter what standard of proof is applied. Plaintiff is

correct, as well, that defendants produced no evidence as to damages, that is, the

value of a fifteen-percent ownership interest in Twin Cities.

      Indeed, Iqbal did not rely on the contract modification theory to obtain

relief. Iqbal testified that he was an owner from the start based upon his

understanding of the agreement and by how he was treated. In other parts of his

testimony, he seemed to admit that it was his contractual obligation to become

an approved Popeyes franchisee; however, he maintained that the Parikhs made

it impossible for him to become one because they did not submit his application.

And defense counsel did not argue the elements of a contract modification claim.

Rather, defense counsel pursued theories of detrimental reliance on the Parikhs'

promises to submit the franchise application, and excusal of a contract condition

due to the Parikhs' misconduct in not submitting the application. The verdict

sheet, however, reflects that the jury rejected defendants' claim that plaintiff

prevented Iqbal from becoming an approved franchisee.

      Finally, we note that Iqbal's oral modification allegation obviously

implicates the rights of a third party⸻Popeyes. Iqbal clearly understood that

Popeyes' rights were implicated because the terms of his written agreement with

Twin Cities referenced Popeyes' ongoing interest in all of the Minnesota


                                                                         A-5821-17T1
                                       37
restaurants.   However, pursuant to the Parikhs' franchise agreement with

Popeyes, the Parikhs could not transfer ownership of Twin Cities without

Popeyes' consent. Indeed, the franchise agreement provides that the agreement

would be terminated if any transfer occurred without Popeyes' consent.

      At trial, Iqbal presented testimony that other individuals were part owners

of Twin Cities, without being approved franchisees. However, he presented no

evidence that Popeyes consented to the Parikhs' transferring to him a fifteen-

percent ownership interest in Twin Cities. Therefore, even if Iqbal proved a

modification of his written agreement with Twin Cities, such that he did not

have to be an approved franchisee in order to be a part owner of Twin Cities

(which he did not), he still did not prove any right to a fifteen-percent ownership

of Twin Cities because he did not show that Popeyes consented to such transfer.

                                       VI.

      In their cross-appeal, defendants contend the judge committed plain error

by not sua sponte granting them prejudgment interest on the award of damages.

Our review of an award of prejudgment interest, and the calculation of that

amount, is for an abuse of discretion. County of Essex v. First Union Nat'l Bank,

186 N.J. 46, 61 (2006); P.F.I., Inc. v. Kulis, 363 N.J. Super. 292, 301 (App. Div.

2003). We see no abuse.


                                                                          A-5821-17T1
                                       38
      Prejudgment interest on contract and equitable claims is a matter of

equity. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 390 (2009). In

such cases, prejudgment interest is meant to cover the period of time during

which the defendant had use of the amount in question, while the plaintiff was

entitled to have it. Ibid.

      Here, defendants did not request prejudgment interest before the trial

judge, either in their counterclaim or in a post-trial motion. Moreover, since

prejudgment interest is a discretionary decision in this contract action, the judge

was under no obligation to order prejudgment interest sua sponte, and there was

no abuse of discretion. On remand, defendants may raise the pre-judgment issue

by filing an appropriate motion.

      We affirm the judgment. We remand for further proceedings on the

sanction and pre-judgment issues. We do not retain jurisdiction.




                                                                          A-5821-17T1
                                       39
