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Amatuzzo v. Kozmiuk

November 14, 1997

PAUL AMATUZZO, PLAINTIFF-RESPONDENT,
v.
MICHAEL G. KOZMIUK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County.

Approved for Publication November 19, 1997.

Before Judges Shebell, D'Annunzio and A.a. Rodriguez. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Defendant, Michael G. Kozmiuk, appeals from two orders of the Chancery Division entered on March 26, 1997. The first vacated the order of December 20, 1996 denying plaintiff's motion to enforce the settlement, ordered that the Stipulation of Settlement negotiated by the attorneys be enforced notwithstanding defendant's refusal to execute the Agreement, and awarded fees to plaintiff's attorney subject to the filing of a certification of services. The second order was in response to defendant's objection to the certification of services. It awarded a counsel fee in the sum of $2,350.00, payable within thirty days. We reverse both orders and remand for a hearing as to whether an enforceable settlement was entered into.

A detailed recitation of the facts surrounding the underlying litigation is not necessary. Suffice it to say that negotiations between the attorneys for the parties resulted in the drafting of a "Stipulation of Settlement" containing some eleven paragraphs. On August 30, 1996, prior to a scheduled pretrial conference, counsel for the plaintiff, with a copy to defendant's counsel, advised the court in writing that the litigation was resolved and that a Stipulation of Settlement would be filed within ten days.

The final draft of the Stipulation of Settlement provided for, among other things, transfer of defendant's interest in a residence in Jersey City, free and clear of any claims, except a mortgage with an approximate balance of $138,000.00. Defendant could reside in the property until January 31, 1997, provided he paid for the mortgage, taxes, insurance, and utilities during that time.

Further, the settlement was contingent upon plaintiff examining the premises on October 29, 1996 at 10:30 a.m. to verify its condition. Plaintiff was to furnish defendant with a release executed by plaintiff's parents, releasing defendant of any liability for monies they loaned for repairs to the property. The Agreement also provided for distribution between plaintiff and defendant of certain personal property upon the premises. Additionally, plaintiff was to refinance the mortgage or otherwise seek to have defendant removed as an obligor on the mortgage. Moreover, defendant after vacating the premises was to be secured by plaintiff from any further payments on the mortgage. If defendant could not be removed from the mortgage obligation, the premises were to be sold.

Each party was to be responsible for his own attorney's fees unless attorney's fees and costs were incurred in order to compel compliance with the terms of the provisions of the settlement. In that event, the defaulting party would be responsible for the other party's fees and costs. The Stipulation further provided that:

11. The parties shall file simultaneously with the filing of this Stipulation of Settlement a Stipulation of Dismissal with Prejudice of the complaint and counterclaim. Notwithstanding that filing, either party may institute the appropriate action necessary to enforce the terms and provisions of this Stipulation of Settlement and nothing contained in the Stipulation of Dismissal shall preclude the prosecution of that action.

The Stipulation of Settlement, when sent to defendant's counsel was undated, but contained the personal signature of the plaintiff and his attorney. A release from plaintiff's parents dated October 25, 1996, releasing the defendant of any and all claims, was also provided.

Defendant failed to be present for inspection of the premises on October 29, 1996, and he refused to sign the Stipulation of Settlement. Plaintiff, therefore, filed a motion with certification to enforce the settlement, returnable on November 22, 1996. On December 4, 1996, a Substitution of Attorney was filed on behalf of defendant by his present counsel, which reflected that his previous counsel agreed to withdraw.

Defendant filed a certification in opposition to plaintiff's motion, stating: "I did not enter into any settlement agreement with the plaintiff in this case." He specifically stated that when his attorney presented him with the first settlement agreement, he strenuously objected because plaintiff would become the sole owner of the property, while defendant would remain liable on the mortgage even after vacating the property. He also certified that he objected because his ...


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