May 29, 2009
ESTATE OF CLAYTON A. WETMORE, PLAINTIFF-APPELLANT,
ANSCOTT CHEMICAL CORP. AND JOHN BELLUSCIO, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-802-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges Carchman and Simonelli.
Plaintiff Estate of Clayton A. Wetmore appeals from a Law Division order denying its motion for attorney's fees and costs, and a second order denying its motion to settle judgment and to reconsider the denial of its motion for attorneys' fees and costs. We affirm and remand for further proceedings.
In 2000, plaintiff filed a complaint against defendants Anscott Chemical Corp. (Anscott) and Jack Belluscio (Belluscio) for monies due under a certain agreement between the parties. In 2002, the parties entered into a Stipulation of Settlement (the stipulation), where Anscott agreed to pay plaintiff $250,000 in installments. The parties also executed a consent judgment to be held by plaintiff in escrow. In the event of Anscott's default, the stipulation permitted plaintiff to file the consent judgment and to "immediately proceed with any and all efforts to collect from Anscott the full amount of [plaintiff's] $250,000 judgment, as well as interest, costs and attorney's fees from the date of default, less the amount already paid to [plaintiff] by Anscott as of the time of default."
Anscott defaulted. As a result, plaintiff submitted the consent judgment to the court. Judge Kumpf entered the consent judgment on June 10, 2005. The consent judgment did not mention or incorporate the stipulation, or contain a provision permitting plaintiff to recover attorneys' fees and costs. It merely provided for the entry of a $250,000 judgment.
Plaintiff then initiated supplementary proceedings; however, Anscott did not comply. As a result, plaintiff filed a motion to compel a deposition of Anscott's representative pursuant to Rule 4:59-1(e) and Rule 6:7-2(a); for interest pursuant to Rule 4:42-11(a)(iii); for attorneys' fees and costs; and for monetary sanctions pursuant to Rule 1:10-3.
By order entered on September 24, 2008, Judge Kumpf granted plaintiff's motion to compel a deposition and for interest pursuant to Rule 4:42-11, but denied plaintiff's request for attorneys' fees and costs. The judge also declined to enter judgment because plaintiff did not request such relief in its motion papers.
Plaintiff then filed a motion to settle judgment pursuant to Rule 4:42-1(b) and for reconsideration of the denial of its motion for attorneys' fees and costs. Judge Kumpf denied the motion, finding as follows:
Judgment was entered on June 10, 2005 so it is far [too] late to settle the form of the judgment in addition this judgment was by consent order so the parties had already settled the form of the order. Court sees no basis for counsel fees for the two motions supplemary proceedings.
This appeal followed.
Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155. However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Applying these standards, we discern no reason to disturb Judge Kumpf's rulings, except as to the entry of judgment for interest. Rule 4:42-1(b) provides for the settlement of a judgment by motion or consent. Here, the judgment was settled by consent on June 10, 2005. The consent judgment did not mention or incorporate the stipulation, and did not provide for an award of attorneys' fees and costs. We also discern no abuse of discretion in the judge's denial of attorneys' fees and costs incurred by plaintiff for compelling compliance with the supplementary proceedings. R. 1:10-3.
We disagree with Judge Kumpf's refusal to enter a judgment for interest. The September 24, 2008 order entitles plaintiff to interest. However, because the consent judgment contains no provision for the award of pre-judgment interest, plaintiff is only entitled to post-judgment interest pursuant to R. 4:42-11(a), not to interest from the time of default. Accordingly, we remand for amendment of the judgment to reflect plaintiff's entitlement to post-judgment interest.
Affirmed and remanded for modification of the judgment consistent with this opinion. We do not retain jurisdiction.
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