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NOT FOR PUBLICATION WITHOUT THE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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