On appeal from Superior Court, Chancery Division, Bergen County.
Petrella, D'Annunzio and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
Plaintiff Benjamin Haynoski brought a motion in aid of litigant's rights, pursuant to R. 1:10-5, to enforce the terms of a settlement agreement entered into between himself and his brother, Leonard Haynoski, Sr., as well as his brother's wife, Catherine Haynoski, and their son, Leonard Haynoski, Jr. Plaintiff claimed he had fulfilled all of his obligations under the settlement agreement. The motion specifically sought an order "to compel defendant to provide a fully executed discharge of mortgage in proper recordable form[,]" and also sought attorneys fees and costs. Plaintiff now appeals only from that part of the order of judgment denying his application for counsel fees. We reverse and remand for further proceedings in accord with this opinion.
The facts are not in dispute. The settlement agreement which is at the heart of this dispute was executed on June 19, 1980. It resolved litigation which was essentially between the two brothers concerning a company known as Jersey Steel Rule Die Company.
Although the settlement agreement was placed on the court record and later reduced to writing, it was not incorporated in an order or judgment.
Under the agreement, plaintiff purchased the stock of the company and the real estate where the company conducted its business. Plaintiff's obligation was secured by mortgages on the real estate in New Jersey and certain parcels of real estate located at Shell Harbor, Sanibel Island, Florida. The shares of stock purchased by plaintiff were to be kept in escrow until his obligation under the agreement was satisfied.
When a portion of the debt was satisfied, Leonard Haynoski, Sr., pursuant to the agreement, furnished plaintiff with cancellations of the mortgages on the two New Jersey properties. However, the mortgages remained on the Florida property to secure the remainder of the debt.
Leonard Haynoski, Sr., passed away on December 22, 1988. On July 2, 1990, plaintiff sent a letter and check in the amount of $397.83, payable to the estate of Leonard Haynoski, to defendant Catherine Haynoski, representing that the check constituted a final payment pursuant to the settlement agreement.
On July 31, 1990, plaintiff's counsel requested that counsel for Catherine Haynoski arrange for the removal of the mortgage on the Florida property since plaintiff's obligation under the agreement had been satisfied.*fn1 On August 22, 1990, Catherine's attorney advised plaintiff's counsel that he was attempting to determine whether all the payments had been made, and was attempting to obtain other information so that he could reply more fully to plaintiff's request. He requested that plaintiff's counsel not release the documents held in escrow until Catherine authorized such release. Thereafter, five letters were sent by plaintiff's counsel to defense counsel seeking information and/or action. In April, 1991 plaintiff personally wrote to Catherine's counsel detailing
the correspondence previously forwarded by his attorney, and advised him that Catherine's failure to comply with the prior request was "now causing [him] a hardship." On July 3, 1991 plaintiff's counsel again wrote to Catherine's counsel concerning the release of documents being held in escrow and specifically requesting a "fully executed discharge" of the mortgage.
Finally, on November 14, 1991 plaintiff filed the subject motion. The motion was adjourned from December 6, 1991 to December 20, 1991.
On December 18, 1991, Catherine sent a letter to plaintiff's counsel stating that on that date she had signed and delivered to counsel: (1) a satisfaction of the mortgage on the Florida property, (2) a "termination of U.C.C. Financing Statement filed with the Secretary of State Office on June 27, 1980[.] . . ." (3) copies of the Promissory Notes in the amounts of $50,000.00 and ...