Cumberland Mutual Fire Insurance Company v. Environmental Remediation and Financial Services, Inc.
CourtNew Jersey Superior Court Appellate Division
Date FiledOctober 26, 2026
DocketA-1266-24
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-1266-24
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,
FRANKLIN MUTUAL
INSURANCE COMPANY,
FARMERS MUTUAL
INSURANCE COMPANY OF
SALEM COUNTY, and
PHILADELPHIA
CONTRIBUTIONSHIP
INSURANCE COMPANIES,
Plaintiffs-Respondents,
v.
ENVIRONMENTAL
REMEDIATION AND FINANCIAL
SERVICES, INC. ("ERFS"),
Defendant,
and
MARK VIGNERI,
Defendant-Respondent.
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY on its
own behalf and on behalf of its
insured THE ESTATE OF SYLVIA
PRUZAN, THE PHILADELPHIA
CONTRIBUTIONSHIP
INSURANCE COMPANIES on its
own behalf and on behalf of its
insured THE ESTATE OF SYLVIA
PRUZAN, and THE ESTATE OF
SYLVIA PRUZAN,
Plaintiffs-Respondents,
v.
ENVIRONMENTAL
REMEDIATION AND FINANCIAL
SERVICES, INC. ("ERFS"),
Defendant,
and
MARK VIGNERI,
Defendant-Respondent.
MARK VIGNERI,
Third-Party Plaintiff-
Respondent,
v.
DAVID DECLEMENT, ESQ., and
STEVEN KALEBIC, ESQ.,
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Third-Party Defendants,
and
JOEL WERBEL, ESQ., and
GEORGE GROCHALA, ESQ.,
Third-Party Defendants-
Respondents.
DAVID E. SHAVER, ESQ., and
BROEGE, NEUMANN, FISCHER
& SHAVER, LLC,
Intervenors-Appellants.
_____________________________
Argued September 22, 2026 – Decided October 26, 2026
Before Judges Vanek and Bergman.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0605-23.
Larry S. Loigman argued the cause for appellants.
Joel N. Werbel argued the cause for respondents
Cumberland Mutual Fire Insurance Company, Franklin
Mutual Insurance Company, Farmers Mutual Fire
Insurance Company of Salem County, and Joel N.
Werbel, Esq. (Methfessel & Werbel, attorneys; Joel N.
Werbel and Adam M. Schwartz, on the brief).
George J. Grochala argued the cause for respondent The
Philadelphia Contributionship Insurance Companies.
PER CURIAM
A-1266-24
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Intervenors David E. Shaver, Esq., and Broege, Neumann, Fischer &
Shaver, LLC, appeal from orders entered on April 25, 2023, March 22, 2024,
August 30, 2024, December 2, 2024, and December 5, 2024, which respectively,
granted respondents' motion for sanctions pursuant to Rule 1:4-8 against
intervenors, imposed a protective order, quantified the counsel fees and costs
previously awarded under Rule 1:4-8, addressed reconsideration of those fee
awards, and entered judgment thereon. The sanctions arose from counterclaims
and third-party claims filed against the plaintiff insurance carriers and their
counsel on behalf of defendant Mark Vigneri.
Because the trial court failed to render adequate findings of fact and
conclusions of law pursuant to Rule 1:7-4(a) addressing the requirements of
Rule 1:4-8, we are constrained to vacate the challenged orders and judgment and
remand for further proceedings consistent with this opinion.
I.
We recite the facts and procedural history in a detailed manner because of
their complex nature. Two related civil actions were filed in the Law Division
in 2020 against Environmental Remediation and Financial Services (ERFS), a
company engaged in performing environmental remediation services, and its
principal, Vigneri, arising from allegations that ERFS accepted substantial
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prepaid sums to perform residential remediation work and failed to complete,
and in some instances, failed to even begin that work. The first complaint, filed
September 22, 2020, concerned only one property and asserted claims sounding
in contract, consumer fraud, unjust enrichment, and fraud. The second
complaint, filed October 21, 2020, expanded the allegations to approximately
forty residential properties and sought, among other relief, the appointment of a
special master.
On November 4, 2020, the court entered a consent order consolidating the
matters and directing the parties to agree upon a special master. On May 3,
2022, ERFS filed a Chapter 11 bankruptcy petition.1 On July 6, 2022, plaintiffs
filed an amended complaint asserting additional claims against Vigneri
personally, including insurance fraud, consumer fraud, and common-law fraud.
On October 24, 2022, Vigneri, through his attorney, Shaver, filed an
answer that included counterclaims against the plaintiff insurance carriers and a
third-party complaint against plaintiffs' counsel, Joel Werbel, Esq., and George
Grochala, Esq., as well as against David DeClement, Esq., and Steven Kalebic,
Esq. The counterclaims and third-party complaint alleged several claims,
including claims for tortious or intentional interference with prospective
1
The bankruptcy action does not affect the issues in this appeal.
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economic advantage, defamation, civil conspiracy, and malicious abuse of
process.
Beginning in late October 2022 and continuing through December 16,
2022, respondents served multiple Rule 1:4-8 "safe harbor" letters on
intervenors demanding withdrawal of the counterclaims and third-party claims.
On November 1, 2022, after the filing of the counterclaims and a third -party
complaint, a status conference was held concerning Shaver's demand that
Werbel and Grochala withdraw or be disqualified; the later motion to disqualify
was denied by formal order.
On December 14, 2022, Philadelphia Contributionship Insurance
Companies (PCIC) moved to dismiss the counterclaims and third-party claims,
which all defendants joined. The first of three separate judges presiding over
the matter heard argument in February 2023. In a lengthy oral decision, he
concluded Vigneri's claims were deficient on multiple grounds, including lack
of standing, application of the absolute litigation privilege, prematurity of the
malicious prosecution claim, pleading deficiencies as to defamation, failure to
establish the elements of tortious interference, and the absence of an actionable
underlying wrong to sustain a civil conspiracy claim.
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Although the first judge stated some of the claims "should be" dismissed
with prejudice if the absolute litigation privilege applied, he ultimately
dismissed the counterclaims and third-party complaint without prejudice. The
same day, he denied Vigneri's motion to disqualify Werbel and Grochala.
On March 9, 2023, PCIC moved for sanctions under Rule 1:4-8 against
Vigneri and Intervenors, and similar sanctions motions were filed on behalf of
Werbel and the other plaintiff insurance companies. At this point, a second
judge had taken over case management after the first judge's retirement.
On April 10, 2023, the second judge placed an initial statement of reasons
on the record concerning the sanctions motions and stated, if the record
remained the same, the sanctions motion "should be granted" at the conclusion
of the litigation. Oral argument followed on April 14, 2023. At that hearing,
the second judge found that up "until [the first judge's] ruling[,] the work
expended is clearly, in my view, compensable under Rule 1:4-8."
In addition, on April 10, 2023, Shaver had filed a substitution of attorney,
with Vigneri proceeding pro se. On April 28, 2023, however, Shaver wrote to
the second judge stating he believed he had an ethical obligation to continue
taking steps "to protect" Vigneri's interests.
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On April 19, 2023, the second judge supplemented his previous findings
and granted movants' sanctions motions, but found the request for specific sums
and costs of the sanctions would be stayed pending: 1) a stipulation dismissing
the claims with prejudice; 2) a motion by plaintiffs, at the conclusion of
discovery, for dismissal with prejudice, at which point additional fees and costs
could be sought from April 20, 2023 forward; or 3) reinstatement if discovery
later revealed facts sufficient to support the claims and Vigneri ultimately
prevailed on those claims. The judge entered orders on April 25, 2023, granting
the sanctions motions subject to those conditions.
At the next proceeding, a May 13, 2023 case management conference,
Shaver appeared with Vigneri and represented that neither he nor Vigneri
intended to revive the dismissed claims. The judge stated if that were so, the
claims should be dismissed with prejudice, to which Shaver responded: "Well
see I was afraid to do that because I thought the 'with prejudice' would kick in
the sanctions."
On May 15, 2023, the second judge entered an order severing the
counterclaims and third-party claims from the underlying insurer actions. The
affirmative claims against Werbel, Grochala, and the plaintiff carriers proceeded
in due course, with the severed claims both receiving separate docket numbers.
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On August 9, 2023, the second judge entered judgment in favor of
plaintiffs and against Vigneri on the consumer fraud and common-law fraud
counts in the amount of $5,556,727.10, finding, among other things, that his
conduct was "tantamount to a Pyramid/Ponzi scheme."
On October 30, 2023, respondents moved to dismiss the severed
counterclaims and third-party complaint with prejudice. A third judge granted
that motion on December 19, 2023.
Respondents then moved to fix the amount of sanctions contemplated by
the second judge's April 25, 2023 order. In support, they submitted
certifications and separately itemized billing records to the court for in camera
review, accompanied by cover letters advising the parties that the billing backup
had been provided to the judge's chambers. They also proposed a protective
order permitting disclosure of the billing materials for use solely in the fee
litigation. Attorney Loigman, now appearing for Shaver, declined to consent to
the protective order without respondent providing an "explanation."
Thereafter, Shaver moved to transfer venue and cross-moved to dismiss
the sanctions applications, arguing the in camera submission of billing materials
was improper ex parte conduct. On February 16, 2024, the second judge denied
the change of venue motion, and expressly found the respondents' billing
A-1266-24
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submissions were not improper ex parte submissions because they were
supporting materials for a fee application, had been disclosed by cover letter,
and had been offered to Shaver and Vigneri under a proposed protective order .
The third judge later entered a protective order sua sponte on March 22,
2024, governing disclosure and use of the billing materials. He thereafter heard
further argument on the fee motions. On August 30, 2024, the judge entered
two orders fixing sanctions. The first order awarded PCIC $36,808.02 jointly
and severally against Vigneri, Shaver, and Shaver's law firm, Broege, Neumann
Fischer & Shaver. The second order awarded $20,000 to Werbel and $31,854.40
to Cumberland Mutual Fire Insurance Company, Franklin Mutual Insurance
Company and Farmers Mutual Fire Insurance Company of Salem County, again
jointly and severally against Vigneri, Shaver, and the law firm. In his written
statement of reasons, the third judge stated he had reviewed the certifications
and supporting materials and found the fees "reasonable." He also rejected
Shaver's position that he could not be responsible for fees incurred after
withdrawing, reasoning that Shaver filed the frivolous claims, refused to dismiss
the claims with prejudice, and that additional fees were caused in part by his
continued conduct, including the billing dispute and venue motion.
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Shaver moved for reconsideration, which the judge denied. The court
thereafter entered judgments on December 5, 2024, in the same amounts fixed
in the August 30, 2024 orders.
On appeal, intervenors contend the sanctions and fee awards entered by
the trial court were error because: 1) the court did not make appropriate findings
of fact and conclusions of law as required by Rule 1:7-4(a) that analyzed the
factors of Rule 1:4-8; 2) Shaver could not be held liable for fees incurred after
April 10, 2023, when he substituted out as counsel; and 3) the billing records
and certifications provided to the court were improperly provided by way of an
in camera submission requiring a denial of the sanctions motions.
II.
We review an award of counsel fees under Rule 1:4-8 for abuse of
discretion. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005); Shore
Orthopedic Group, LLC v. Equitable Life Assurance Soc'y of the U.S., 397 N.J.
Super. 614, 623 (App. Div. 2008). Notwithstanding, that deferential standard
does not relieve the trial court of its obligation to make findings of fact and
conclusions of law sufficient to permit appellate review pursuant to Rule 1:7-
4(a). This rule requires that "[t]he court shall, by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
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thereon." R. 1:7-4(a). When those findings are absent or insufficient, remand
is required. Bove v. AkPharma Inc., 460 N.J. Super. 123, 155 (App. Div. 2019);
F.S. v. L.D., 362 N.J. Super. 161, 170 (App. Div. 2003); Estate of Doerfler v.
Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018).
A.
We first address intervenors' contention that the trial court's determination
to award sanctions in the April 25, 2023 order was error because it failed to
render appropriate findings of fact and conclusions of law.
The record demonstrates the second judge determined to impose sanctions
through the incorporation of the first judge's findings on the motion to dismiss
Vigneri's claims, while the third judge later quantified the award. The April 25,
2023 order granted the sanctions motions but stayed the entry of "specific sums
and costs" pending later events. In the April 14, 2023 proceeding the second
judge stated he had reviewed the first judge's transcript multiple times and based
on "[the first judge's] ruling[,] the work expended is clearly, in my view,
compensable under Rule 1:4-8." In the April 19, 2023 supplement, he
established a framework under which sanctions would be quantified later
depending on whether the claims were dismissed with prejudice or revived .
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Because we conclude intervenors' argument holds merit, we are
constrained to vacate the sanctions order. After our thorough review of the
record, we conclude the court's findings did not sufficiently identify the precise
factual and legal basis for sanctions under Rule 1:4-8. The second judge did not
expressly find whether the counterclaims and third-party complaint were filed
for an improper purpose, whether they lacked a reasonable legal or factual basis,
or whether both grounds were present. See R. 1:4-8. He did not identify the
particular papers or representations of intervenors that violated the Rule,
whether the safe-harbor requirements were satisfied as to each relevant paper
and each relevant respondent, or whether the conduct of Shaver, Vigneri, and
Shaver's law firm should be treated identically or separately. Instead, the ruling
largely referenced the first judge's decision dismissing Vigneri's claims against
respondents and expressed the work expended by respondents to defend against
those claims was "compensable" under Rule 1:4-8.
We note the first judge dismissed Vigneri's claims pursuant to Rule 4:6-
2(e) without prejudice. Although he characterized the litigation privilege
argument as the "strongest" and indicated some claims "should be" dismissed
with prejudice if the privilege applied, he nonetheless left open the possibility
of later amendment or reinstatement of the claims if different facts emerged.
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The sanctions ruling of the second judge principally based upon the reasoning
of the first judge concerning the dismissal motion required the court to explain,
with specificity, why the pleadings nonetheless satisfied Rule 1:4-8 at the time
they were filed and served, despite the "without-prejudice" dismissal. We
further note there are distinct differences in the legal standards governing
motions under Rule 4:6-2(e) and Rule 1:4-8, wherein the granting of a motion
under the former rule does not, in and of itself, require the grant of a motion
under the latter rule.
The above omission by the court is critical because respondents' sanctions
theories were numerous and distinct. Respondents asserted intervenors'
pleadings were sanctionable because: 1) they were barred by the absolute
litigation privilege; 2) they were filed to disqualify opposing counsel; 3) certain
claims lacked essential elements as a matter of law because of standing defects,
and 4) the factual allegations concerning interference with prospective
purchasers lacked support. The court was required to state which theory or
theories it accepted and why. See Bove, 460 N.J. Super. at 155.
Notwithstanding the confusing procedural and factual assertions in a highly
contentious, multiple claim matter, we are constrained to vacate the sanctions
orders and remand to the trial court to render specific findings.
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B.
We now turn to appellant's contention that the court erred in assessing
sanctions against Shaver and his law firm because he had withdrawn as counsel.
The third judge issued written statements of reasons quantifying the sanctions
against intervenors on August 30, 2024. Those statements addressed the
reasonableness of the fees requested and intervenors' argument that Shaver
should not be liable for fees incurred after substituting out as counsel .
We need not reach these issues because we conclude the third judge's
decisions largely treated respondents' sanctions entitlement as having already
been established by the second judge and that his role was to quantify the award.
Because we have determined the underlying entitlement ruling lacked specific
findings required by Rule 1:7-4(a), which may affect the actions of intervenors
found to be subject to sanctions, the later quantification of sanctions against
Shaver and his firm cannot stand.
In addition, although the third judge stated he had reviewed the
certifications and supporting materials and found the fees reasonable, the court
did not sufficiently explain what fees were incurred "as a direct result" of the
Rule 1:4-8 violation(s), especially after April 10, 2023, when Shaver formally
substituted out as counsel. See Masone, 382 N.J. Super. at 192. That question
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is especially important here because the fee awards included substantial sums
incurred after the substitution of attorney, after the severance of the claims, and
after those claims were dismissed with prejudice.
The third judge concluded Shaver remained responsible because he filed
and signed the pleadings asserting the frivolous claims, refused to dismiss the
claims with prejudice, and contributed to later motion practice concerning venue
and the adequacy of the billing materials submitted with respondents' motion.
That reasoning may ultimately be sustained, but the court must explain more
specifically what fees were attributable to the original Rule 1:4-8 violation(s),
what fees were attributable to Shaver's post-withdrawal conduct, if any, and
whether the Rule permits recovery of these amounts.
C.
We now turn to intervenors' contention that the billing records and
certifications provided to the court were improperly provided by way of an in
camera submission and should not have been considered. Based on our previous
determinations, we need not reach the propriety of the in camera billing-
submission protocol in this case, as asserted by intervenors, requiring a
dismissal of the fee applications. We recognize the second judge had rejected
intervenors' contention the in camera submission of billing records, followed by
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a proposed protective-order, constituted improper ex parte conduct and the third
judge later adopted that determination. Nonetheless, because we are remanding
the matter regarding the Rule 1:4-8 sanctions issues, we also remand this issue
to the trial court for further determination. We note that the record does not
reflect the respondents filed a formal motion seeking a protective order before
requesting in camera treatment of the billing submissions. Therefore, on
remand, we leave to the trial court's discretion whether a formal application for
a protective order is required. The trial court may address any renewed
submissions and confidentiality procedures as it deems appropriate on remand.
We therefore vacate the April 25, 2023 order, the March 22, 2024
protective order, the August 30, 2024 fee orders and the December 5, 2024
judgments and remand for further proceedings consistent with this opinion. On
remand, we direct the trial court to address and enter specific findings
concerning: 1) the specific submissions found to violate Rule 1:4-8; 2) whether
the sanctions were based on improper purpose, lack of legal or factual basis, or
both; 3) the factual and legal basis supporting those conclusions as to each
sanctioned person or entity; 4) respondents' compliance with the Rule 1:4-8 safe-
harbor requirements as to each person or entity sought to be sanctioned; 5) the
significance, if any, of the first judge's dismissal without prejudice to the
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sanctions analysis; 6) what fees were reasonably incurred as a direct result of
the violation pursuant to the factors set forth in Rule 4:42-9; and 7) the basis for
imposing post-April 10, 2023 fees on Shaver and his firm. We express no view
on whether sanctions ultimately should or should not be awarded. We leave to
the trial court's reasoned discretion whether to permit additional submissions or
hold further arguments or proceedings as it deems necessary.
To the extent we have not addressed any of parties' remaining arguments,
we conclude those arguments are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Vacated and remanded. We do not retain jurisdiction.
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