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William Repole and Maria Repole v. Danielle Gawrysiak


August 8, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-428-06.

Per curiam.


Submitted July 3, 2012 -

Before Judges Payne and Messano.

Defendant Danielle Gawrysiak appeals from the Law Division's October 21, 2011 order entering final judgment in favor of plaintiffs William and Maria Repole in the amount of $4025. The matter has its genesis in a lawsuit commenced by plaintiffs in 2006, seeking damages for alleged property damage and trespass by defendant, their neighbor. Defendant filed an answer and counterclaim, and the litigation settled in November 2007. Pursuant to the terms of the settlement, plaintiffs agreed to convey a piece of their property to defendant in return for defendant's agreement to remove an existing masonry wall and replace it with a new retaining wall.

Disputes arose regarding defendant's delay in constructing the wall. On October 8, 2010, plaintiffs filed a motion to enforce the settlement, which defendant opposed by blaming plaintiffs for the delay and otherwise presenting excuses for the delay. On November 19, Judge Harry G. Carroll granted the motion, ordered defendant to complete construction of the wall by December 31 and denied plaintiffs' request for sanctions and counsel fees.

The wall was not completed, and plaintiffs again filed a motion asking that defendant be held in contempt of the prior order and that sanctions and fees be imposed. Defendant again filed opposition.

In a written statement of reasons filed on May 27, 2011, Judge Carroll rejected defendant's "weather-related delays as an excuse to justify her non-compliance with the settlement agreement and t[he] Court's prior November . . . 2010 Order." He entered an order (the May order) finding that defendant had violated plaintiffs' rights, ordering the wall completed by June 10, 2011, imposing a $50 per day penalty if it was not completed by then and awarding counsel fees of $1225 to be paid in fourteen days.

On August 3, 2011, plaintiffs filed another motion alleging that defendant had not paid the counsel fee award and the wall was still not completed. Defendant filed opposition, arguing that the delay was excusable, or, alternatively, the result of material misrepresentations made by plaintiffs.

On August 26, Judge Carroll entered another order (the August order) enforcing the prior orders, imposing sanctions on defendant in the amount of $3850, granting additional counsel fees in the amount of $2800 and ordering further sanctions if the wall was not completed by September 2. In a written statement of reasons accompanying his order, Judge Carroll noted defendant's opposition but found "the extent of the continued delay inexcusable."

On September 30, defendant moved to vacate the sanctions and for reconsideration of the counsel fee awards. In her certification supporting the motion, defendant reiterated the reasons for the delay in constructing the wall and contended that she and her husband, who had done most of the work, were not in violation of the "spirit" of the settlement agreement. Plaintiffs filed opposition, arguing the motion was untimely, defendant had not paid the counsel fees awarded in the May order and continued to delay completion of the wall.

In a written statement of reasons that accompanied his order, citing Rule 4:49-2, Judge Carroll noted that reconsideration of the May order was untimely. Nevertheless, the judge considered the merits of defendant's arguments regarding both the May and August orders and concluded "there [i]s nothing before the court that was not previously raised by defendant and considered by the court in its earlier determination." Judge Carroll found that defendant's motion "simply attempt[ed] to rehash arguments that were raised and rejected by the court, and d[id] not satisfy the strict legal standard meriting reconsideration of th[e] court's finding that defendant failed to act diligently in complying with her obligation under the settlement agreement . . . ."

The judge vacated his prior award of sanctions. However, Judge Carroll determined that the counsel fee awards "related not to the settlement of the underlying litigation, but rather . . . defendant's continued failure to comply" with prior orders. He further decided that "counsel's services were necessary to secure defendant's compliance" with the settlement. He entered the order under review and this appeal followed.

Before us, defendant contends that Judge Carroll's conclusion that plaintiffs' motions were necessary to ensure compliance with the settlement "was unsupported by the evidence"; the award of legal fees was arbitrary and capricious; the judge erred in interpreting the language of the settlement agreement; the judge failed to consider that plaintiffs had "unclean hands"; and the judge failed to consider the relationship between plaintiffs and their attorney pursuant to RPC 1.5(a)(6).

We have considered these arguments in light of the record and applicable legal standards. We conclude they lack sufficient merit to warrant extensive discussion, Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by Judge Carroll. We add the following brief comments.

A motion for reconsideration "shall be served not later than 20 days after service of the judgment or order" and "shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Such motions are addressed to "the sound discretion of the Court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly and reserved for situations where the court relied "on plainly incorrect reasoning[,]" where the court failed to consider probative, competent evidence, or where "there is good reason for [the court] to reconsider new" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler & Verniero, Current N.J. Court Rules, supra, comment 2 on R. 4:49-2 (2005)).

Here, defendant presented nothing new when she moved for reconsideration of the May and August orders. Judge Carroll correctly characterized defendant's efforts as attempts "to rehash arguments that were raised and rejected" previously. Her appellate brief again repeats the various excuses for the delay in constructing the wall. There was simply no basis presented for reconsideration of the decision to award plaintiffs counsel fees.

"An award of counsel fees by the trial court will not be overturned unless there has been a clear abuse of discretion." Monogram Credit Card Bank of Georgia v. Tennesen, 390 N.J. Super. 123, 133-34 (App. Div. 2007) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We cannot conclude that Judge Carroll mistakenly exercised his discretion in awarding plaintiffs counsel fees and reducing the fee award to judgment.



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