On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2327-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2011 -
Before Judges Fuentes, Graves and Koblitz.
Plaintiff Timothy Karakasian appeals from an order dated May 27, 2011, denying his motion to enforce a settlement and his request for attorney's fees and costs. The motion judge noted in the order that the settlement funds had been received by plaintiff's attorney on May 9, 2011. Plaintiff contends the trial court erred because: (1) defense counsel "intentionally delayed payment without justification"; (2) defense counsel "misrepresented the contents of the agreed upon settlement"; and (3) he was compelled to incur unnecessary legal costs and fees. We conclude from our examination of the record that these arguments are without merit, Rule 2:11-3(e)(1)(E), and require only the following discussion.
After several days of trial, this case settled on December 15, 2010. When the settlement agreement was placed on the record, defendant's attorney stated the agreement was "subject to my client's settlement agreement," which included a nondisclosure provision. Defense counsel faxed the following message to plaintiff's counsel on January 12, 2011: "I am out of the office with the flu. The Settlement Agreement is essentially done. I will get it out this week and apologize for the delay."
The proposed agreement was sent to plaintiff's counsel on January 20, 2011, and he returned the signed agreement with several handwritten changes on January 24, 2011. In a letter to plaintiff's counsel dated February 3, 2011, defense counsel stated he was sending a copy of the revised agreement to his client and would forward the settlement proceeds "as soon as possible," as long as the changes to the agreement were acceptable to his client. In another letter dated February 8, 2011, defendant's counsel stated: "I am still waiting for my client's position relative to your redaction and as soon as they inform me as to their position relative to same, I will inform you accordingly." Thereafter, in a voicemail message, which was confirmed in writing, defendant's counsel indicated his client "would be willing to amend the agreement to accept [plaintiff's] strikeouts" if plaintiff was willing to include a nondisparagement provision.
Plaintiff's counsel did not respond to the voicemail. Instead, he filed a motion to enforce the settlement and to enter a judgment. Plaintiff also sought post-judgment interest, together with counsel fees and costs in the total amount of $1230.
Plaintiff's motion was heard on April 15, 2011. During oral argument, the attorneys blamed each other for the delay in finalizing the agreement. The court granted plaintiff's motion to enforce the settlement agreement. However, the court was unwilling to grant any further relief because the matter "could have easily been resolved" if the attorneys listened to the tape of the settlement proceedings and "talked to one another." The order entered on April 15, 2011, required defendant to provide the settlement proceeds "as soon as possible."
The order was received by defense counsel on April 20, 2011, and the settlement check, dated May 2, 2011, was sent to plaintiff's counsel on May 9, 2011. On April 29, 2011, prior to the receipt of the settlement check, plaintiff filed another motion to enforce the settlement. In a supporting certification, plaintiff's attorney requested counsel fees and costs in the amount of $1890 for "both motions." The court found there was nothing to enforce because plaintiff's counsel "received the settlement funds on May 9, 2011." Accordingly, the court denied plaintiff's motion on May 27, 2011.
On appeal, defendant primarily argues, as he did in the Law Division, that he is entitled to an award of counsel fees because "defense counsel intentionally delayed payment without justification." Judge Patricia Richmond rejected plaintiff's arguments and, in our view, she did not clearly abuse her discretion. See Rendine v. Pantzer, 141 N.J. 292, 317 (1995) ("[F]ee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion.").
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