Opinion
DOCKET NO. A-5077-14T4
11-16-2016
ANGLESEA COLONY GARDENS I CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. CHARLES TORNETTA; JENNIFER SNIDER-TORNETTA, Defendants-Respondents, and BOULDER CLAIMS, LLC; ICAT MANAGERS, LLC; UNDERWRITERS AT LLOYD'S; and SYNDICATE 4242, Defendants.
Ansell Grimm & Aaron, PC, attorneys for appellant (Breanne M. DeRaps and Mark M. Wiechnik, on the briefs). Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys for respondents (Kristofer B. Chiesa, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0359-13. Ansell Grimm & Aaron, PC, attorneys for appellant (Breanne M. DeRaps and Mark M. Wiechnik, on the briefs). Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys for respondents (Kristofer B. Chiesa, on the brief). PER CURIAM
Plaintiff Anglesea Colony Gardens I Condominium Association, Inc. appeals from the June 5, 2015 Law Division order, which denied plaintiff's motion for reconsideration of the January 28, 2015 order granting summary judgment to defendants Charles Tornetta and Jennifer Snider-Tornetta and dismissing the first amended complaint with prejudice. For the following reasons, we affirm.
We derive the following facts from the record. In December 2010, a pipe burst inside a condominium unit located at the Anglesea Colony Gardens in North Wildwood. Over 500,000 gallons of water poured into the first floor of the building that housed defendants' unit and other units, damaging the concrete slab under each unit. Plaintiff sought access to defendants' unit to investigate the damage to the concrete slab underneath their unit, and defendants permitted access on several occasions. However, because defendants had significant high-end upgrades in their unit, they preferred to hire their own contractor to complete renovations in the unit instead of plaintiff's retained contractor.
After months of negotiation, on January 15, 2013, plaintiff's counsel sent plaintiff's final settlement offer to defense counsel:
[Plaintiff]'s best and final offer is that it will reimburse [defendants] up to a maximum of $60,000 for the removal and replacement of finishes in the unit. [Plaintiff] will be responsible only for coordinating and completing the slab removal and [re-pour]. [Defendants] will be responsible for all other aspects of the project, including removal of all personal belongings and finishes from the unit within [seven] days of the date of our agreement to prevent further delays. [Plaintiff] will not pay any amounts up front, but will reimburse properly presented and paid invoices for work done in the unit, up to the maximum $60,000 agreed upon settlement. All other work done in the unit will be the sole responsibility of [defendants].On January 16, 2013, defense counsel confirmed defendants' acceptance of the offer, but proposed the following revision: "[Defendants] will have their belongings and finishes removed from the unit within [seven] days of the date of a fully executed settlement agreement." (Emphasis added). Defense counsel asked plaintiff's counsel to forward a draft settlement agreement.
That same day, plaintiff's counsel accepted the proposed revision, but asked if defendants would start removing their personal property and finishes pending execution of a settlement agreement. Defense counsel immediately responded that a finalized settlement agreement and release were necessary, but he would ask defendants to begin removing their personal property and finishes "as a good faith gesture."
On January 24, 2013, plaintiff's counsel sent a draft settlement agreement and release to defense counsel via e-mail. Paragraph one provided as follows:
[Defendants], through their contractor(s), will be responsible for preparing the [u]nit so that [plaintiff] may remove the concrete slab underneath the [u]nit and repair the concrete slab underneath the [u]nit . . . . In order to prepare the [u]nit, the [defendants] shall remove all of their personal belongings, all furnishings, all finishes as well as all interior walls within and from the [u]nit . . . within ___ days of the date of this [a]greement. [Defendants] will also be responsible for replacing, at their own sole expense, all the furnishings, finishes and interior walls in the [u]nit[.]Paragraph four provided as follows:
In consideration of, among other things, the [p]arties entering into this [a]greement, [plaintiff] hereby waives, releases, acquits and forever discharges [defendants] from any claims it may have against [defendants] with regard to damages incurred by [plaintiff] in connection with this dispute and any damages caused to [plaintiff] or its contractors, in performing the [s]lab [r]emoval [w]ork, as well as any claims for attorney fees and disbursements related to negotiating this [a]greement. However, in the event [defendants] violate the terms of this [a]greement, [plaintiff] shall be entitled to any and all damages, counsel fees, costs and other monies recoverable by law and pursuant to [plaintiff]'s master deed and by-laws and other governing documents.
Plaintiff's counsel's January 24, 2013 e-mail and the draft settlement agreement and release mistakenly went into defense counsel's spam e-mail folder. As a result, defense counsel did not see the e-mail and draft agreement until February 5, 2013. Defense counsel immediately confirmed her acceptance of the draft settlement agreement, but proposed a revision to paragraph one that set February 22, 2013 as the removal date. Defense counsel made other proposed revisions that did not affect the essential terms of the settlement to which all counsel had agreed on January 16, 2013.
Plaintiff's counsel never responded to the proposed revisions, and plaintiff never executed a settlement agreement or paid defendants any money. Instead, on February 25, 2013, plaintiff filed a verified complaint and order to show cause (OTSC), seeking access to defendants' unit. In a March 15, 2013 order, the court granted the OTSC; required defendants to remove all of their personal belongings and finishes by March 21, 2013; and granted plaintiff access to the unit. Defendants complied with the court's order. Plaintiff thereafter accessed defendants' unit and completed the required work pursuant to the settlement agreement.
Plaintiff subsequently filed a first amended complaint, alleging that by refusing to allow access to their unit for repair work, defendants negligently caused damage to their unit, the common elements, and other units, and breached plaintiff's governing documents. Plaintiff sought damages "for delaying the contractors from completing the [repairs], costs of storage and removal of the fixtures[.]" Defendants filed an answer and counterclaim for enforcement of the settlement agreement and damages for breach of the agreement.
According to the governing documents, a unit owner's failure to comply could result in sanctions and penalties. --------
Defendants filed a motion for summary judgment, arguing that the parties entered into a binding settlement agreement on January 16, 2013, when they agreed to the essential terms of the settlement. Plaintiff filed a cross-motion for summary judgment, arguing there was no enforceable settlement agreement because plaintiff never accepted defense counsel's February 5, 2013 proposed revisions to the draft agreement. Alternatively, plaintiff argued that if there was an enforceable settlement agreement, defendants breached it by failing to remove their personal property and finishes within seven days.
In a January 28, 2015 written opinion, the court found there was an enforceable settlement agreement as of January 16, 2013, as the parties had agreed to the material terms of the settlement on that date. The court also found that the March 15, 2013 order granting plaintiff access to defendants' unit did not negate the validity of the settlement agreement and was consistent with the settlement terms. The court entered an order on January 28, 2015, granting defendants' motion for summary judgment and enforcing the settlement agreement. Plaintiff does not challenge the court's finding that there was an enforceable settlement agreement as of January 16, 2013.
The January 28, 2015 order effectively ended the litigation. Plaintiff filed a motion for reconsideration, arguing that defendants' summary judgment motion did not include a request to dismiss the first amended complaint. Plaintiff also argued that the court failed to make findings on plaintiff's claims for damages due to defendants' negligence and breach of the governing documents; however, plaintiff never requested this relief in its cross-motion for summary judgment.
In a June 5, 2015 written opinion, the court denied the motion, finding that the settlement agreement encompassed and resolved all allegations, claims, and issues raised in the first amended complaint. The court recognized that it failed to note in its prior decision that paragraph four of the draft settlement agreement, which defense counsel accepted, permitted plaintiff to recover damages and counsel fees and costs in the event defendants violated the terms of the agreement. However, the court concluded that the first amended complaint did not allege a breach of the settlement agreement and there was no proof that defendants violated the agreement. This appeal followed. On appeal, plaintiff reiterates the arguments made in its motion for reconsideration.
Regarding the denial of a motion for reconsideration, we have held:
Reconsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289. We discern no abuse of discretion here.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted) (internal quotation marks omitted).]
A settlement of a legal claim between parties is a contract like any other contract, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), which "may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)). That the agreement was oral, instead of written, is of no consequence. Id. at 124. "Where the parties agree upon the essential terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact the writing does not materialize because a party later reneges." Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.) (emphasis added) (quoting Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (Ch. Div. 1987)), certif. denied, 134 N.J. 477 (1993).
Here, there was an enforceable settlement agreement as of January 16, 2013. The essential terms of the settlement were as follows: (1) plaintiff will reimburse defendants up to a maximum of $60,000 for the removal and replacement of finishes in defendants' unit; (2) plaintiff will only be responsible for coordinating and completing the slab removal and re-pour; (3) defendants will be responsible for all other aspects of the project and work in the unit, including removal of all personal belongings and finishes from the unit within seven days of a fully executed settlement agreement; and (4) plaintiff will reimburse properly presented and paid invoices for work done in the unit, up to the maximum $60,000. (Emphasis added). Because the parties never executed a settlement agreement, defendants did not violate the seven-day removal provision.
We agree with the trial court that the settlement agreement encompassed and resolved all of the claims plaintiff raised in the first amended complaint. We also agree there was no proof that defendants violated the settlement agreement. Accordingly, the motion for reconsideration was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION