ROBERT RODANO VS. LAURA KOUSMINE (L-0279-14, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-3952-15T3
ROBERT RODANO,
Plaintiff-Respondent/
Cross-Appellant,
v.
LAURA KOUSMINE,
Defendant-Appellant/
Cross-Respondent.
Submitted September 6, 2017 – Decided October 2, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Docket No. L-0279-14.
Laura Kousmine, appellant/cross-
respondent, pro se.
Richard M. King, Jr., attorney for
respondent/cross-appellant.
PER CURIAM
Defendant Laura Kousmine appeals from an April 7, 2016
order denying reconsideration of an earlier decision
enforcing a settlement agreement between her and plaintiff
Robert Rodano. Rodano cross-appeals the denial of two
applications for attorney fees. We now affirm denial of
reconsideration, but remand to the trial court the issue of
attorney fees.
This litigation has a lengthy history. The dispute
initially arose from the need for access easements over
Kousmine's lot. The lot is located at the base of a peninsula
which protrudes into a back bay in West Wildwood. Rodano
owns the lot located at the tip. See Rodano v. Craig, No.
A-0863-09 (App. Div. May 17, 2011), cert. denied, 208 N.J.
338 (2011). The Craigs, predecessors in Kousmine's chain of
title, were ordered to construct a bulkhead pursuant to
specific plans, effectively incorporated into the trial
judge's order. The plans were approved by the New Jersey
Department of Environmental Protection (DEP). The bulkhead
along the seawall of the lots protects the easement area on
Kousmine's lot from natural erosion. For reasons not relevant
to this appeal, the owner of the lot was ordered to install
the bulkhead so as to maintain the easement for the benefit
of Rodano and the prior owners of a lot located between
Rodano's lot and Kousmine's lot.
Kousmine purchased the property at a sheriff's sale,
with full knowledge of the easement and the obligation on the
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property's owner to construct the bulkhead. She acquired
title on March 31, 2014.
By verified complaint, signed June 24, 2014,1 Rodano
sought enforcement of litigant's rights, namely, the prior
order requiring the installation of the bulkhead. The Craigs
had discharged the judgment in bankruptcy, and, therefore,
the obligation ran solely with the land. The cost increased
over the years from an estimated $84,247.97 to approximately
$110,000. The complaint sought enforcement of the original
order, as well as counsel fees pursuant to R. 1:10-3.
On September 19, 2014, the parties settled the matter.
The agreement provided as follows:
1. Servient Estate (by and through the
current owner, Laura Kousmine) shall
construct a bulkhead and easement
pursuant to and in conformance with a
Department of Environmental Protection
Permit Number 0513-06-0006.2 (and Plans
incorporated therein), and the bulkhead
construction is to be completed by G & G
Marine pursuant to and in conformance
with a proposal dated July 18, 2014 and
the remaining improvements required by
the existing Permit (and Plans
incorporated therein) shall be completed
by the Servient Estate in a workmanlike
manner.
2. Construction of the above improve-
ments shall commence as soon as
1
No filed copy was included in the Appendix. See R. 2:6-
1(b).
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reasonably possible, but with urgency and
no later than October 15, 2014, and be
completed in a reasonable manner and
time. It is agreed and understood that
delay caused by natural disaster, acts
of God, or such other unforeseeable and
uncontrollable impediments to
performance shall not be held against the
Servient Estate unless such delay is
caused by the actions or neglect of the
Servient Estate (referred to herein as
"Impediments"). The actual completion of
the driveway (as opposed to the physical
bulkhead), may be delayed until January
15, 2015, but not later (subject to
Impediments as defined above), so as to
allow for necessary and appropriate
coordination of said work due to the
potential burying of any electric lines
in the new easement driveway by Atlantic
Electric.
3. All costs relating to said engi-
neering and construction of the bulkhead
and driveway are to be borne by the
Servient Estate.
. . . .
5. The temporary easement in the rear
of the Servient Estate shall remain open
to be utilized as has been the past
practice, until such time as the easement
described above is completed and ready
for use.
By February 2015, Kousmine completed the bulkhead,
however, she did not adhere to the plans referred to in the
settlement. Unsurprisingly, on Rodano's motion to enforce
the agreement, compliance was ordered to take place within
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90 days of the decision. Counsel fees were denied without
explanation.
Kousmine then sought reconsideration. She submitted a
"survey" done by land surveyors in support of her position
that a reasonable approximation of the original plans
satisfied the settlement agreement and complied with past
court orders.2 In denying the motion for reconsideration the
judge said:
Defendant concedes that the bump out is
short of the Plan, yet she contends that
the shortfall has no effect on the
functionality of Plaintiff's ability to
ingress and egress the easement. Again,
such contentions were already addressed
in this Court's decision rendered on
February 3, 2016, and Defendant fails to
demonstrate that this Court "expressed
its decision based upon a palpably
incorrect or irrational basis, or
[. . .] failed to appreciate the
significance of probative, competent
evidence." See Cummings v. Bahr, 295
N.J. Super. 374, 384 (App. Div. 1996).
Thus, defendant is not entitled to
reconsideration pursuant to R. 4:49-2 of
this Court's Order entered on February
3, 2016, and Defendant is required to
comply with said Order.
2
A cover letter accompanying the survey is dated August 3,
2016. We do not consider materials which the trial judge did
not view, absent a motion. See R. 2:5-4(a). Additionally,
Kousmine refers to a letter from the DEP, also obtained after
the judge's decision. In the absence of a motion to
supplement the record, we will not consider either document.
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As to the request for attorney fees on Kousmine's motion
for reconsideration, the judge said:
As to Plaintiff's cross-motion for
attorney's fees, this [c]ourt finds that
Plaintiff is not entitled to attorney's
fees and costs pursuant to R. 1:10-3.
The court has discretion to "make an
allowance for counsel fees to be paid by
any party to the action to a party
accorded relief["] under R. 1:10-3. See
Abbott v. Burke, 206 N.J. 332, 371
(2011). "The scope of relief . . . is
limited to remediation of the violation
of a court order." Ibid. Here,
Plaintiff is not entitled to fees for
Defendant's attempt to show that she
complied with the purpose of the DEP Plan
and reconsideration of the same.
Motions for reconsideration rest within the sound
discretion of the trial court. Pitney Bowes Bank, Inc. v.
ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.
2015). Such motions should be granted only if they fall into
the narrow corridor of decisions based on plainly incorrect
reasoning, failures to consider evidence, or the development
of some substantial new information that was unavailable at
the time of the initial decision. Ibid.; Cummings, supra,
295 N.J. Super. 374, 384 (App. Div. 1996) (citing D'Atria v.
D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).
In this case, Kousmine failed to meet any of the
requirements. She merely reiterated information already
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provided to the court. Specifically, she stated that the
bulkhead as constructed at the time of the initial decision
was a reasonable approximation of that which was required by
judicial decree.
All of the information that Kousmine provided, including
the survey, was available to her at the time the initial
application for enforcement was made. There was simply
nothing new about her contentions on reconsideration – they
were merely a restatement of the original arguments.
The issue of attorney fees, however, is a different
matter. We begin with two undisputed facts – that Kousmine
knew and understood her obligations, and concedes that the
bulkhead as constructed deviates from the original. Her
position is that a reasonable facsimile should suffice to
satisfy the settlement agreement.
The judge did not explain his reasons for denying
attorney fees in the original decision enforcing the
settlement agreement. In all actions tried without a jury,
the judge must find the facts and state conclusions of law
on every motion decided by a written, appealable order. R.
1:7-4(a). New Jersey has a strong policy disfavoring the
shifting of attorney fees, which is embodied in the so-called
American Rule. R. 4:42-9[1]. The allowance of counsel fees
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is a discretionary action required to be based on factual
findings and is reviewable under the standard of a clear
abuse of discretion. Ibid. But discretion can be exercised
to grant fees on motions to enforce litigants' rights. A
statement of reasons was necessary.
In addition, the judge's very brief exposition denying
attorney fees on the application for reconsideration was
unclear. When the application was made, nothing had changed.
Kousmine merely expressed her disagreement with the original
decision. She pursued her judicial remedies for that reason
alone. Kousmine knowingly failed to comply with the letter
of the settlement agreement. She understood her obligations
when she acquired the property, and she failed to articulate
the basis for her unilateral decision to alter the plans.
See Schochet v. Schochet, 435 N.J. Super. 542, 549-50 (App.
Div. 2014). In rendering his decision, the judge should
consider these circumstances before making his determination.
We anticipate that the judge will fully and fairly
revisit the applications. We do not express an opinion on
the ultimate outcome.
Affirmed, except that the orders denying attorney fees
are vacated and remanded for reconsideration and a fuller
statements of reasons.
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Affirmed in part; vacated and remanded in part.
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