LEMAD CORPORATION VS. IRENE HONACHEFSKYÂ IRENE HONACHEFSKY VS. CHARLES M. URBAN(C-000030-08, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3531-15T4
LEMAD CORPORATION,
Plaintiff-Respondent/
Cross-Appellant,
v.
IRENE HONACHEFSKY, JIMMY AGUIRRE
and AUDREY BETH AGUIRRE,
Defendants,
and
WILLIAM B. HONACHEFSKY and BONITA
E. HONACHEFSKY,
Defendants-Appellants/
Cross-Respondents.
______________________________________
IRENE HONACHEFSKY,
Third-Party Plaintiffs,
and
WILLIAM B. HONACHEFSKY and BONITA
E. HONACHEFSKY,
Third-Party Plaintiffs-
Appellants/Cross-Respondents,
v.
CHARLES M. URBAN in his individual
capacity, and DANIEL W. SOLES,
Third-Party Defendants.
______________________________________
Submitted October 17, 2017 – Decided November 14, 2017
Before Judges Leone and Mawla.
On appeal from State of New Jersey, Chancery
Division, Morris County, Docket No. C-000030-
08.
William B. Honachefsky and Bonita E.
Honachefsky, appellants/cross-respondents pro
se.
Martin & Tune, LLC, attorneys for
respondent/cross-appellant (Daniel B. Tune,
of counsel and on the brief; William E.
Reutelhuber, on the briefs).
PER CURIAM
This matter concerns a dispute over an easement between the
plaintiff Lemad Corporation (Lemad) and defendants William and
Bonita Honachefsky (the Honachefskys), which the parties have been
disputing since 2004. In 2012, after numerous pretrial motions
and lengthy discovery the parties settled their dispute.
Thereafter, the Honachefskys appealed from the order denying their
motion to vacate the settlement agreement, which we affirmed in
Lemad Corp. v. Honachesfky, No. A-5582-12 (App. Div. October 24,
2014). The terms of the settlement required the Honachefskys to
establish the new easement. When they failed to do so, Lemad
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filed a motion to enforce litigant's rights pursuant to Rule 1:10-
3. The Honachefskys filed a cross-motion to declare the settlement
agreement null and void. Both parties also sought counsel fees.
The trial court issued orders on March 11, 2016 and May 10,
2016, holding the Honachefskys in violation of litigant's rights
and awarding Lemad counsel fees, respectively. The Honachefskys
appeal from both orders, and Lemad cross-appeals from the order
granting counsel fees. We affirm.
I.
The following facts are taken from the record. Lemad
purchased lot 6 on block 68 in Clinton Township in 2004. At that
time, Irene Honachefsky owned a single-family home on lot 4; the
Honachefskys owned a single-family home on lot 4.01; and Jimmy and
Audrey Beth Aguirre owned a single-family home on lot 5. The
Honachefskys' and Aguirres' properties are only accessible by way
of a ten foot wide easement, bearing a road called Echo Lane,
which runs from those properties through lot 6 to the public
street. The easement was deeded to Irene Honachefsky and her late
husband in 1956. Lemad purchased lot 6 subject to the easement
by lots 3, 4, 4.01, and 5 for ingress and egress.
After purchasing lot 6, Lemad obtained a survey of the
property and discovered Echo Lane had branched out beyond the
original deeded description. As a result, Lemad suggested an
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agreement between it and the Honachefskys regarding the
maintenance of Echo Lane. The Honachefskys claimed adverse
possession over any portion of Echo Lane not described in the
original deeded easement.
From August 2007 until April 2012, Lemad and the Honachefskys
engaged in litigation, and following discovery each filed summary
judgment motions. Before oral argument of their motions, the
parties engaged in settlement discussions and reached an
agreement. The terms of the settlement agreement placed on the
record were as follows:
Lemad Corporation which owns the property that
is encumbered by an existing ten-foot recorded
easement, [] will consent to draft a new
easement. That easement will be 14-foot in
width. The 14-foot width will run from the
northerly property line of Lemad and will
extend out 14 feet from that property line for
the entire length of the Lemad property.
Lemad will flag that new easement area. It
will draw the draft easement and the metes and
bounds descriptions for the same. The
easement . . . will be a nonexclusive access
easement. It will inure to the benefit, and
run with the land of both Mrs. Honachefsky's
track, Mr. and Mrs. Honachefsky's track; and
the successors in interest to the Aguirre
property who is Mrs. Fernandez and one other
person. . . . So the ten-foot easement will
be expanded to 14 feet. It will be delineated,
it will be described by metes and bounds in
an easement that will be recorded . . . in the
Hunterdon County Clerk's office. And it will
have the nonexclusive right of all parties who
are beneficiaries to the easement to maintain
the roadway within the easement area,
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including the grading, putting down the stone,
and trimming brush, grass and weeds as
necessary to maintain the adequate width of
the easement . . . [and t]he integrity of the
easement area. . . . The 14-foot easement
will include the disputed 4.59 feet that is
basically between both Honachefskys'
properties and the current Echo Lane; there
was a gore or a disputed area there. That
will now be granted as part of an easement.
Which, they can do with the entire length of
the easement whatever maintenance, putting
down of stone, berming as necessary to
maintain the integrity of the roadway for all
parties' benefits.
[Lemad Corp., supra, slip op. at 3-5]
Thereafter, the Honachefskys agreed to inform the prosecutor they
no longer wished to pursue criminal charges they had filed against
Lemad's principal shareholder, and agreed they would pay up to
$2000 towards establishing the new easement. Finally, the parties
agreed to have the easement marked, recorded, and improved within
eight months.
The Honachefskys moved to vacate the settlement agreement.
The trial court denied the Honachefskys' motion, finding they were
fully aware of the binding nature of the settlement agreement and
had not indicated any hesitancy or lack of understanding
surrounding the agreement. As we noted above, the Honachefskys
appealed from the order denying their motion and sought to
invalidate their settlement.
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We affirmed the court's order, and held the trial court
"painstakingly questioned all parties to ensure that they
understood and agreed to the terms as stated on the record, and
that they wanted to place the settlement on the record that day."
Id. at 5. We noted all essential terms of the settlement agreement
were present, there was "no fraud, misrepresentation or other
misdeeds that warrant vacating the settlement agreement," and
merely because "William and Bonita [Honachefsky] have now second
guessed their entry into the settlement agreement does not warrant
its reversal." Id. at 11.
After our affirmance, Lemad recorded the settlement agreement
on January 8, 2015. Lemad then sent the Honachefskys a notice on
April 27, 2015, regarding their obligation to make the improvements
to Echo Lane. Lemad issued a second notice on June 3, 2015. A
final notice was sent on July 7, 2015, by certified and first
class mail, which was returned unclaimed on August 7, 2015.
Because the Honachefskys failed to complete any work on Echo
Lane, Lemad filed a motion to enforce litigant's rights pursuant
to Rule 1:10-3. The Honachefskys filed a cross-motion to declare
the settlement null and void, have it removed from their chain of
title, and requested counsel fees. The trial court entered a
March 11, 2016 order finding the Honachefskys in violation of the
settlement agreement. The court gave Lemad limited power of
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attorney to begin the work on the easement. The court ordered the
Honachefskys to pay for the bid/estimate from the contractor hired
by Lemad, pay $1000 for the cost of any applications and permits,
and reimburse Lemad any additional necessary funds within two days
of notice. The trial court also ordered the Honachefskys to pay
counsel fees.
II.
We begin with our standard of review. We review a trial
court's enforcement of litigant's rights pursuant to Rule 1:10-3
under an abuse of discretion standard. Barr v. Barr, 418 N.J.
Super. 18, 46 (App. Div. 2011). Generally, Rule 1:10-3 is "a
civil proceeding to coerce the defendant into compliance with the
court's order." Pasqua v. Council, 186 N.J. 127, 140 (2006)
(quoting Essex Cty. Welfare Bd. v. Perkins, 133 N.J. Super. 189,
195 (App. Div.), certif. denied, 68 N.J. 161 (1975)). As such, a
trial judge's exercise of discretion will not be disturbed absent
a demonstration of abuse of discretion resulting in injustice.
Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). An
abuse of discretion "arises when a decision is 'made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-
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Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265
(7th Cir. 1985)).
Additionally, the imposition of counsel fees in connection
with a Rule 1:10-3 motion also is reviewed under an abuse of
discretion standard. See Packard-Bamberger & Co. v. Collier, 167
N.J. 427, 444 (2001) (holding a counsel fee award "will not be
reversed except upon a showing of an abuse of discretion."). "An
allowance for counsel fees is permitted to any party accorded
relief following the filing of a motion in aid of litigant's
rights, R[ule] 1:10-3." Barr, supra, 418 N.J. Super. at 46.
III.
The Honachefskys argue the trial judge erred by granting
Lemad's motion because: (1) Lemad was attempting to enforce an
agreement which was not the original intent of the parties; (2)
the agreement did not contemplate obtaining permits or
applications for the construction of the easement; and (3) the
Honachefskys had only agreed to pay for repairs to the easement
in the amount of $2000. We conclude these arguments lack merit
and are contradicted by the record, settlement agreement, and our
previous determination in this matter.
Indeed, the trial court found "[t]he easement is fourteen
feet, the easement is the duration of the Plaintiff's property,
and the Defendant pays for it[.]" This finding was based on the
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trial court's review of the record of the original settlement
proceedings and a review of our first decision. In our decision,
we noted "[a]s to the cost of the establishment of the new
easement, the settlement specifically provided that all parties
who are beneficiaries to the easement have the nonexclusive
responsibility to maintain the roadway." Lemad, supra, slip op.
at 11. We explained that the parties' settlement required the
Honachefskys to bear both the cost and the responsibility to
establish the new easement. Id. at 11-12.
The Honachefskys' obligation to establish the new fourteen
foot wide easement was defined in the settlement agreement based
on William Honachefsky's representation he could create the
easement himself, given his skill and expertise as a surveyor.
Id. at 5. At the time of the settlement, the trial court
specifically addressed his role in establishing the easement:
Mrs. B. Honachefsky: Are we going to take the
whole financial burden then?
The Court: Well, Mr. Honachefsky said that he
thought he could do it for $2,000, which is,
you know a small amount to pay for what you
are getting in return which is the 4.59 feet.
The extra footage in the easement, as well as
your ability to grade the property so it
doesn't flow on your property or your mother's
property or anybody else's property anymore.
And Mr. Honachefsky I think knows how to do
this.
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Mrs. B. Honachefsky: Is that what you want,
Bill?
Mr. W. Honachefsky: That is fine.
[Id. at 11-12.]
Since the Honachefskys agreed to do the work and bear the costs
of establishing the easement, the trial court correctly concluded
their failure to do so was a violation of litigant's rights.
Additionally, the trial judge's decision to grant Lemad
limited power of attorney to establish the new easement on the
Honachefskys' behalf, and reimburse Lemad for the costs of doing
so, including the permits, was not an abuse of discretion. The
Supreme Court has stated "[t]he scope of relief in a motion in aid
of litigants' rights is limited to remediation of the violation
of a court order." Abbott v. Burke, 206 N.J. 332, 371 (2011).
The remedy fashioned by the trial court here was precisely what
was necessary to achieve the goals of the parties' settlement.
IV.
The Honachefskys also argue Rule 4:50-1 applies, which they
assert "provides relief from judgments in situations in which,
were it not applied, a grave injustice would occur." They claim
the trial court's orders are "extremely contrary to the unanimously
acknowledged real intentions of the April 13, 2012 settlement,
which if allowed to stand, would result in an unjust, one-sided
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unconscionable contract totally in favor of the [r]espondent." We
disagree.
The record demonstrates the Honachefskys' cross-motion in the
trial court did not seek relief from the settlement agreement
under Rule 4:50-1. Instead, they raise this argument for the
first time on appeal. Relief under Rule 4:50-1 must first be
sought in the trial court. It does not constitute a basis for
relief on appeal where it was not sought in trial court. Indeed,
It is a well-settled principle that our
appellate courts will decline to consider
questions or issues not properly presented to
the trial court when an opportunity for such
a presentation is available "unless the
questions so raised on appeal go to the
jurisdiction of the trial court or concern
matters of great public interest."
[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973) (quoting Reynolds Offset Co., Inc.
v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959), certif. denied, 31 N.J. 554 (1960)).]
For these reasons, we decline to address this claim.
V.
Lastly, we address both parties' arguments challenging the
trial court's counsel fee determination. The Honachefskys claim
the trial judge's orders awarding counsel fees were unwarranted.
Lemad claims the award was too little and the trial court should
have made it whole by granting all counsel fees and costs incurred,
which totaled $11,113. We disagree on both accounts.
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Rule 1:10-3 provides "[t]he court in its discretion may make
an allowance for counsel fees to be paid by any party to the action
to a party accorded relief under this rule." "[T]his rule
provision allowing for attorney's fees recognized that as a matter
of fundamental fairness, a party who willfully fails to comply
with an order or judgment entitling his adversary to litigant's
rights is properly chargeable with his adversary's enforcement
expenses." Pressler & Verniero, Current N.J. Court Rules, cmt.
4.4.5 on R. 1:10-3 (2018). Therefore, a counsel fee award "will
not be reversed except upon a showing of an abuse of discretion."
Packard-Bamberger, supra, 167 N.J. at 444.
The trial court found an award of counsel fees appropriate.
The judge stated "I will grant counsel fees because I think the
issues were appropriately raise[d] by the [p]laintiff. The
[d]efendants have an obligation to honor it. Coming here to . . .
me to modify something that's been affirmed by the Appellate
Division is not appropriate." Thereafter, in the May 10, 2016
order, the trial court fixed the amount of counsel fees due at
$2000, and provided further reasoning for doing so. The court
stated:
Fees are awarded not due to any bad faith.
The estimate of $2000 – was not set forth as
the cap on the costs of relocating the
easement. The reasonable inference from the
settlement is that defendants would at their
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cost relocate the easement. That they
resisted causes this award of counsel fees.
(Per R[.] 1:10-3)[.] The hourly rate and
services rendered are reasonable and
appropriate. Given the facts presented by
both parties, the court concludes $2000 is the
appropriate amount.
These findings clearly demonstrate the judge's careful
consideration of the relevant factors in fashioning the counsel
fee award. We can discern no abuse of discretion.
Affirmed.
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