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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4323-07T2
MARLTON MEADOWS CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff-Respondent,
v.
THERESA DIAZ,
Defendant-Appellant.
Submitted May 13, 2009 - Decided
Before Judges A. A. Rodríguez and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket
No. C-00122-06.
Walter T. Wolf, LLC, attorney for appellant.
James M. Vogdes, III, attorney for respondent.
PER CURIAM
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.
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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,
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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
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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).
Affirmed.
(continued)
(continued)
6
A-4323-072
July 31, 2009
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