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Glenbrook Condominium Association, Inc. v. Gurdon

Superior Court of New Jersey, Appellate Division

July 30, 2013

CHARMAINE GURDON, Defendant-Respondent.


Submitted March 19, 2013.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-24892-11.

Herrick, Feinstein, LLP, attorneys for appellant (David J. Byrne and Stefanie Lampf, on the briefs).

Charmaine Gurdon, respondent pro se.

Before Judges Alvarez, St. John and Leone.


Plaintiff Glenbrook Condominium Association, Inc. appeals the April 19, 2012 order of the motion judge, denying its motion for counsel fees, with prejudice, and ordering that its dispute with defendant Charmaine Gurdon be submitted for binding arbitration to the District Fee Arbitration Committee for Bergen County. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse and remand.


The record discloses the following facts and procedural history. Plaintiff filed a complaint against defendant, a unit owner who owed plaintiff common expense maintenance fees. The parties were able to settle the dispute and defendant signed a consent order agreeing to pay plaintiff $3, 220.80. The consent order further provided that plaintiff would receive "reasonable attorneys' fees and costs as will be determined by the Court." Plaintiff subsequently made an application for $12, 531.55 in attorneys' fees and costs pursuant to the terms of the consent order which provided that plaintiff shall file "a fee application, within fifteen (15) days of the date hereof, pursuant to R. 4:42-9(a)(8) and R. 4:42-9(b)." Defendant had the right to contest the application pursuant to the consent order, which she did.

At the motion hearing, instead of determining the reasonableness of plaintiff's application, the motion judge compelled the matter to binding fee arbitration and dismissed the application with prejudice. It is from that order that plaintiff appeals.


On appeal, plaintiff argues that the court erred by: (1) directing the matter to the District Fee Arbitration Committee since the parties explicitly agreed to have the court make a determination as to the reasonableness of attorneys' fees and costs; and (2) sending the matter to fee arbitration where the fee arbitration committee did not have jurisdiction.

Plaintiff argues that while a court has the power to liberally read a party's pleadings, this did not allow the motion judge to ignore the consent order between the parties, or deem defendant's opposition to plaintiff's motion as a demand for fee arbitration. Plaintiff, citing Rule 1:20A-2(a), further contends that the fee committee does not have jurisdiction when the obligation to pay attorneys' fees arises out of settlement.

Conversely, defendant maintains that the motion judge correctly directed the matter to fee arbitration. While she did not specifically request fee arbitration, defendant argues that since she was self-represented, the motion judge properly compelled arbitration based on a close examination of the documents she filed and the points she was trying to get across. Defendant also contends that the fee committee has jurisdiction because the matter was not settled as a result of the controversy over attorneys' fees.

We are satisfied that the legal principles governing the enforcement of settlements as legally binding agreements favors plaintiff's position. As a matter of public policy, the courts of this State favor the enforcement of settlement agreements. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Jannarone v. W.T. Co., 65 N.J.Super. 472, 476-77 (App. Div.), certif. denied, 35 N.J. 61 (1961). This policy acknowledges the self-evident "'notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.'" Jennings v. Reed, 381 N.J.Super. 217, 226-27 (App. Div. 2005) (quoting Peskin v. Peskin, 271 N.J.Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994)). "Consequently, courts 'strain to give effect to the terms of a settlement wherever possible.'" Id . at 227 (quoting Dep't of Pub. Advocate, Div. of Rate Counsel v. N.J. Bd. of Pub. Utils., 206 N.J.Super. 523, 528 (App. Div. 1985)).

Our Supreme Court has defined a consent judgment as "'an agreement of the parties under the sanction of the court as to what the decision shall be.'" Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 226 (1998) (quoting Stonehurst at Freehold, Inc. v. Twp. Comm. of Freehold, 139 N.J.Super. 311, 313 (Law Div. 1976)). While a consent order is of the nature of both a contract and a court order, it is not strictly a judicial decree, but rather in the nature of a contract entered into with the solemn sanction of the court. Ibid. Settlement agreements are generally governed by contract law principles. Brundage v. Estate of Carambio, 195 N.J. 575, 600-01 (2008) (citing Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007)).

The court "has no power to add to that judgment." Long v. Mertz, 21 N.J.Super. 401, 403 (App. Div. 1952). It is not the court's function to make a contract for the parties or to supply terms that have not been agreed upon. Temple v. Clinton Trust Co., 1 N.J. 219, 225 (1948). "'Courts cannot make contracts for parties. They can only enforce the contracts which the parties themselves have made.'" Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960) (quoting Sellars v. Cont'l Life Ins. Co., 30 F.2d 42, 45 (4th Cir. 1929)). Once all essential terms of a settlement have been agreed upon, it becomes binding and enforceable as any other contract.

Applying these principles, we are satisfied that the motion judge erred by not following the clear and unambiguous language of the consent order which required that the application for attorneys' fees be made to the court pursuant to Rule 4:42-9(a)(8) and Rule 4:42-9(b). Further, the parties agreed that the dispute would "be determined by the Court." By referring the dispute to the District Fee Arbitration Committee, the term "consent" was rendered meaningless. This unilateral modification in the consent order materially altered the original terms of the agreement, to the clear detriment of plaintiff. As a result of our remand to the Law Division, we need not reach plaintiff's assertion that the District Fee Arbitration Committee does not have jurisdiction when the obligation to pay attorneys' fees arises out of settlement.

Plaintiff requests that if we reverse, we should remand to a different Law Division judge. Plaintiff contends that the motion judge's statement, among others, that his "conscience is still shocked by a $12, 000 fee on a $3, 000 case, " serves as a basis for remand to a different judge. Additionally, the judge stated "I would not be helpful . . . giving $12, 000 on a $3, 000 case."

We recognize that the motion judge was addressing counsel for plaintiff in a matter in which defendant was self-represented, which many times colors the discourse between counsel and the court. However, if the application for attorneys' fees is assigned to the same trial judge, plaintiff may make a motion requesting that the judge recuse himself. The judge will then have a more complete record, and will entertain the arguments of defendant before deciding that motion.

Reversed and remanded.

We do not retain jurisdiction.

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