July 31, 2009
MARLTON MEADOWS CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
THERESA DIAZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-00122-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2009
Before Judges A. A. Rodríguez and Payne.
Defendant, Theresa Diaz, appeals from the denial of her motion to vacate a settlement with plaintiff, Marlton Meadows Condominium Association, Inc. (Marlton) pursuant to Rule 4:50- 1f. On appeal, defendant makes the following arguments:
I. THE CONDUCT OF MEDIATION WAS SUCH THAT A BINDING SETTLEMENT WAS NOT ENTERED INTO.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE DISMISSAL.
III. THE MASTER DEED OF THE ASSOCIATION DEFINES THE WINDOWS IN QUESTION AS EXCLUSIVE PROPERTY OF THE OWNER.
IV. MISCONDUCT OF THE ASSOCIATION ATTORNEY IN FAILING TO CITE TO THE MASTER DEED PROVISION IN THE COMPLAINT, ALONG WITH THE DEFENDANT'S ATTORNEY'S SIMILAR FAILURE CONSTITUTES LEGAL MALPRACTICE WHICH JUSTIFIES THE APPLICATION OF R.4:50-1(f) SO AS TO VACATE THE DISMISSAL AND THE AGREEMENT.
V. THE FACT THAT DEFENDANT NEVER SAW THE SETTLEMENT AGREEMENT WHICH WAS ALLEGEDLY APPROVED BY HER ATTORNEY DOES NOT ESTOP THE DEFENDANT FROM ASSERTING THE AGREEMENT WAS IMPROPER WHERE HER ATTORNEY HAD DEVIATED FROM PROFESSIONAL STANDARDS IN AGREEING TO IT.
VI. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DECIDE THAT THE PLEADINGS WERE NOT "OVERLY AMBIGUOUS, UNCLEAR OR INACCURATE" BASED ON THE RECORD.
VII. THERE WERE EXCEPTIONAL CIRCUMSTANCES PRESENT TO MAKE ENFORCEMENT OF THE SETTLEMENT AGREEMENT UNJUST, OPPRESSIVE OR INEQUITABLE.
Following our review of the record in light of the arguments presented and applicable precedent, we affirm.
The record discloses that defendant entered into a contract with Castle "The Window People," Inc. to install replacement windows in her condominium unit. The contract specified a price of $4,428, but "[i]f Association denies approval for grids, total project price [would become] $3,943.00 total." Defendant applied to Marlton for permission to replace the windows of her condominium unit with windows containing colonial grids. The replacement was authorized; the grids were not, since consistency with other units lacking grids was required. A copy of the Association's conditional approval was sent to Castle Windows, defendant's installer, but windows with grids were installed, nonetheless.
Eventually, suit was filed by the Association as the result of the unauthorized installation of windows with grids in defendant's unit. After issue was joined and discovery was concluded, Judge Ronald E. Bookbinder recommended that the matter be mediated. The parties agreed. After a four-hour mediation session, the parties entered into an agreement whereby Marlton would pay a maximum of $750 and defendant would pay a maximum of $1,250 to remove the window grids. A contribution to the settlement would be sought from Castle. Both defendant and her attorney were present at the mediation, where a handwritten memorandum of understanding was prepared, with defendant's participation in the drafting, and signed by counsel for both parties. Judge Bookbinder was advised that a settlement, contingent upon its approval by Marlton's Board of Directors, had been reached, and that the handwritten memorandum of settlement would be prepared in typewritten form for ease of understanding. Board approval was granted. Upon settlement, the trial court entered an order dismissing the action.
Following settlement, defendant retained new counsel and moved to vacate the dismissal, mounting, as here, various objections to the conduct of her former counsel and counsel for Marlton. Additionally, defendant claimed that the Master Deed and By-Laws established her control over the windows, and that Marlton had misled her and the court by contending otherwise.
Marlton cross-moved for an order enforcing the settlement Judge Bookbinder denied the relief requested by defendant and granted Marlton's motion. In a written opinion, he stated:
An agreement to settle a lawsuit voluntarily entered into is binding upon the parties, whether or not made in the presence of the Court, even in the absence of a writing. Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div. 1982)[, certif. denied, 94 N.J. 600 (1983)]; Green v. John H. Lewis & Co., 436 F.2d 389 (3d Cir. 1970). An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into, and in the absence of a demonstration of fraud or other compelling circumstances, the Court will honor and enforce just as it enforces other types of contracts. Pascarella, 190 N.J. Super. at 124.
Consistent with New Jersey case law and judicial policy, the Consent Order Settlement Agreement should be enforced. New Jersey courts will not vacate a settlement agreement unless the party seeking such relief can show by "clear and convincing proof" that the agreement should be vacated. Borough of Haledon v. Borough of North Haledon, 358 N.J. Super. 289, 305 (App. Div. 2003) (citing De Caro v. De Caro, 13 N.J. 36 (1953)). . . . Moreover, New Jersey recognizes a strong public policy favoring the settlement of litigation. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). "In recognition of this principle, courts will strain to give effect to the terms of settlement wherever possible." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985). See also Jannarone v. W.T. Co., 65 N.J. Super. 472 (App. Div.), certif. denied [sub nom., Jannarone v. Calamoneri], 35 N.J. 61 (1961); Bernstein [& Loubet] v. Minkin, 118 N.J.L. 203, 205 (E. & A. 1937).
The judge then noted that, to vacate the settlement pursuant to Rule 4:50-1f, the movant must "demonstrate the circumstances are exceptional and enforcement of the judgment or order would be unjust, oppressive or inequitable." Johnson, III v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999).
Further, the judge noted that "settlement of an action by an attorney on behalf of [a] client is fully conclusive on the client and creates an enforceable contract," Kupper v. Barger, 33 N.J. Super. 491, 494 (App. Div. 1955), assuming that the client has given the attorney actual or apparent authority to act.
Judge Bookbinder then concluded:
[P]ursuant to R. 4:50-1, the court in its discretion, has the authority to vacate a settlement, but only when truly exceptional circumstances are present. The court does not believe that there are sufficient factual claims in this matter which would compel the court to vacate the agreement entered into by the parties. Moreover, despite the claim that the Defendant never saw the agreement, the Defendant was represented by Counsel, who had the authority to enter into the agreement on behalf of his client, who was present during the mediation. Additionally, the Court is not persuaded that the pleadings filed when the case was instituted were overly ambiguous, unclear or inaccurate, especially considering that the parties ultimately went to mediation, after the filing of an answer to the complaint on the Defendant's behalf, and settled the matter. Accordingly, as the Court does not believe that enforcing this settlement would be unjust, oppressive or inequitable, the Cross Motion to Enforce the Consent Order is GRANTED and the Motion to Vacate the Consent Order is DENIED.
We affirm, substantially on the basis of Judge Bookbinder's thorough opinion in the matter.
We regard defendant's remaining arguments to have insufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(A) and (E).
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