RENSSELAER CONSTRUCTION CO., INC. VS. NEW VISIONS COMMUNITY DEVELOPMENT CORPORATION (L-0322-07, WARREN COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1471-15T3
A-4030-15T4

RENSSELAER CONSTRUCTION CO.,
INC.,

Plaintiff-Respondent,

v.

NEW VISIONS COMMUNITY
DEVELOPMENT CORPORATION,
CORNELIUS MARTIN, and
VERSEY MARTIN,

Defendants-Appellants.
_________________________________________

Submitted July 25, 2017 – Decided June 11, 2018

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No.
L-0322-07.

Hunt, Hamlin & Ridley, attorneys for
appellants (Raymond L. Hamlin, on the briefs).

Maher & Maher, LLC, attorneys for respondent
(Gary L. Maher, on the briefs).

The opinion of the court was delivered by

LEONE, J.A.D.
 Defendants New Visions Community Development Corporation (New

Visions), its chairman Cornelius Martin, and its president Versey

Martin appeal the trial court's November 4, 2015 order releasing

$81,486.92 to plaintiff Rensselaer Construction Co., Inc.

Separately, defendants appeal the April 7, 2016 denial of their

motion for reconsideration of an order denying the extension of a

stay of the November 4 order. We consolidate the appeals for

purposes of this opinion and affirm.

I.

The record before the trial court included the following

undisputed facts. In 2002, New Visions and plaintiff entered in

a contract for plaintiff to construct New Visions' development in

Newark for $4,193,350. A dispute arose regarding the monies owed

to plaintiff. In 2007, plaintiff filed a complaint against

defendants alleging breach of the construction contract, breach

of a 2007 settlement agreement, conspiracy, fraud, and other causes

of action.

On January 29, 2008, the trial court ordered that all proceeds

from the sale of the remaining unsold properties in the development

and all grant funds due to defendants should be paid into the

court's trust fund. The order provided that 85% of the proceeds

and 75% of the grant funds should be released to plaintiff, with

2 A-1471-15T3
the rest to be retained "until either the conclusion of the within

matter and/or further Order of this Court."

In a January 4, 2010 hearing just before trial, the parties

entered into a settlement agreement and memorialized it on the

record. Defense counsel David J. Fox stated "the matter has been

resolved by and between the parties in the amount of $180,000."

Fox stated defendants would "make application to [the court] for

withdrawal of some of the funds" in the trust account to make

repairs to the last property to be sold in the development, "which

[was] presently under contract," would "hopefully . . . get to

closing within . . . 45 days," after which the proceeds would be

"deposited" into the trust fund and defendant would make "the

necessary accounting to the State of New Jersey" for grant funds

totaling "approximately $90,000. So that the pool can be set up

and then divied up." Fox represented the "goal" was "to have this

. . . done within 60 days."

Defendants subsequently filed a motion for the release of

$10,100 from the trust fund to complete repairs on the last

property. On July 14, 2010, the trial court granted the release

to defendants of $10,100 for repairs.1

1
Defendants also requested leave to file a third-party complaint
against a bank so the bank could "'speak as to the division of
escrow funds[,]'" but the trial court denied that request.

3 A-1471-15T3
 Complications arose over the sale of the last property in the

development and over the remaining State grant funds, and as a

result, the property was not sold as promised. In 2015, $81,483.92

remained in the trust account. Defendants moved for the funds to

be released to them, and plaintiff cross-moved for the funds to

be released to it, supported by a certification from plaintiff's

president, Guillermo L. Cruz.

At the November 4, 2015 hearing, defense counsel argued the

January 4, 2010 settlement agreement was unclear as to whether the

$180,000 owed included payments made to plaintiff before

settlement was reached. The trial court found the "plain language"

of the agreement stipulated that New Visions owed plaintiff

$180,000 pursuant to the settlement agreement, irrespective of any

prior payments or disbursements made, and that the full debt in

its entirety remained unpaid. The court's November 4, 2015 order

entered a $180,000 judgment in favor of plaintiff, ordered that

the $81,486.92 remaining in the trust account be released to

plaintiff. Execution of the order was stayed until December 4,

2015, to give defendants an opportunity to appeal.

On December 4, 2015, defendant filed a timely appeal, docketed

as A-1471-15. After the stay on the November 4 order expired,

plaintiff withdrew the $81,486.92 from the trust fund on December

8, 2015. On December 17, 2015, defendants filed a motion to

4 A-1471-15T3
reinstate and extend the stay. On February 5, 2016, the trial

court without oral argument denied defendants' motion, finding no

possibility of irreparable harm and no jurisdiction as the matter

was then pending in this court.

On March 9, 2016, defendants filed a motion for

reconsideration of the trial court's order denying an extension

of the stay. On April 7, 2016 the court denied defendants' motion

without oral argument, finding that it lacked jurisdiction and

that defendants failed to justify reconsideration. On May 23,

2016, defendants filed a timely appeal, docketed at A-4030-15.

II.

We first address Appeal No. A-1471-15, defendants' appeal of

the November 4, 2015 order, challenging the release of the

remaining $81,486.92 in the trust fund to plaintiff. Defendants

contend the trial court misinterpreted the settlement agreement.

"A settlement agreement between parties to a lawsuit is a

contract." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). "When a

trial court's decision turns on its construction of a contract,

appellate review of that determination is de novo." Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). "Appellate

courts give 'no special deference to the trial court's

interpretation and look at the contract with fresh eyes.'" Ibid.

(citation omitted). We must hew to that standard of review.

5 A-1471-15T3
 "'[T]he settlement of litigation ranks high in our public

policy,'" and we "'strain to give effect to the terms of a

settlement wherever possible.'" Brundage v. Estate of Carambio,

195 N.J. 575, 601 (2008) (citations omitted). "Our strong policy

of enforcing settlements is based upon 'the notion that the parties

to a dispute are in the best position to determine how to resolve

a contested matter in a way which is least disadvantageous to

everyone.'" Ibid. (citation omitted).

Defendants concede that in the January 4, 2010 oral settlement

agreement, the parties agreed that "$180,000[] would be paid to

plaintiff." However, defendants argue the payments to plaintiff

prior to January 4, 2010, must be credited against the $180,000.

Defendants refer to payments from the trust account to plaintiff

of $108,469.52 in March 2008, and $37,467.39 in June 2008.

Courts "should give contractual terms 'their plain and

ordinary meaning,' unless specialized language is used peculiar

to a particular trade, profession, or industry." Kieffer v. Best

Buy, 205 N.J. 213, 223 (2009) (citations omitted). The plain

language of the oral agreement was that defendants still owed

plaintiff $180,000. "[W]hen the intent of the parties is plain

and the language is clear and unambiguous, a court must enforce

the agreement as written, unless doing so would lead to an absurd

result." Quinn v. Quinn, 225 N.J. 34, 45 (2016).

6 A-1471-15T3
 That plain reading also comports with the circumstances.

Plaintiff sued defendants claiming they owed it $407,000. After

some payments were made through the trust fund, the parties settled

by agreeing defendants still owed plaintiff $180,000. The

circumstances confirm that the parties would have stated the amount

that had to be paid to plaintiff to settle the case, rather than

an amount that once was owed but already had been largely paid.

"It is well-settled that '[c]ourts enforce contracts "based

on the intent of the parties, the express terms of the contract,

surrounding circumstances and the underlying purpose of the

contract."' A reviewing court must consider contractual language

'"in the context of the circumstances' at the time of

drafting[.]"'" In re Cty. of Atl., 230 N.J. 237, 254 (2017)

(citations omitted).

Defendants' argument has no basis in the settlement

agreement, which made no mention of the 2008 payments, let alone

deducting them from the $180,000. The only amount the oral

settlement agreement provided would be paid or credited to

defendants from the trust account was the money for repairs on the

last unit to be sold, namely the $10,100 released in July 2010.

In interpreting a settlement agreement, courts "will 'not rewrite

contracts in order to provide a better bargain than contained in'"

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the parties' agreement. Kaur v. Assured Lending Corp., 405 N.J.

Super. 468, 477 (App. Div. 2009) (citation omitted).

Defendants argue the trial court should have held a plenary

hearing to determine the material elements of the settlement

agreement and to specify the intent of the parties when entering

into the 2010 settlement. However, plaintiff offered no factual

basis for a hearing to contravene the plain language of the

settlement agreement. In the certification supporting defendants'

motion, New Vision's president/CEO Martin simply stated that "[t]o

my knowledge plaintiff has no further claim on the deposited

funds." By contrast, the certification of plaintiff's president

Guillermo L. Cruz explained in detail why, after the 2008 payments

were made, defendants still owed plaintiff $180,000 as stated in

the settlement agreement. "[A] plenary hearing is only required

if there is a genuine, material and legitimate factual dispute."

Segal v. Lynch, 211 N.J. 230, 264-65 (2012); cf. Harrington v.

Harrington, 281 N.J. Super. 39, 44-45 (App. Div. 1995) (ordering

a hearing where no agreement was placed on the record and the

parties' certifications showed their "critical disagreement as to

the existence of a binding agreement").

Defendants focus on the trial court's statement that it was

dealing "with this Settlement Agreement which . . . I'm not going

to change. When . . . lawyers write these agreements, I shouldn't

8 A-1471-15T3
have to figure out what they meant when they wrote in plain

language . . . what is there." Defendants view the court's

statement as a critique of the lack of a written agreement, but

the statement instead rejected defendants' unsupported attempt to

contravene the plain language of the oral agreement.

An "'agreement to settle a lawsuit, voluntarily entered into,

is binding upon the parties, whether or not made in the presence

of the court and even in the absence of a writing.'" Pascarella

v. Bruck, 190 N.J. Super. 118, 124 (1983) (citation omitted). The

familiar "practice of spreading the terms of the agreement upon

the record," though not required, provided sufficient basis for

enforcement. Jennings v. Reed, 381 N.J. Super. 217, 229 (App.

Div. 2005). "An agreement to settle a lawsuit is a contract,

which like all contracts, 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." Brundage, 195 N.J. at 601 (quoting Pascarella, 190

N.J. Super. at 124). The trial court properly enforced the

parties' settlement agreement that defendants owed plaintiff

$180,000 by paying plaintiff the $81,486.92 in the trust account.

III.

Defendants' December 4, 2015 notice of appeal stated they

were appealing only the November 4, 2015 order. Nonetheless,

9 A-1471-15T3
defendants' brief in that appeal disputes whether the trial court

issued its February 5, 2016, and April 7, 2016 orders without

hearing oral argument. Any dispute concerning those orders is not

properly raised in Appeal No. 1471-15 because it predated, and was

not an appeal from, those orders. "[I]t is only the judgment or

orders designated in the notice of appeal which are subject to the

appeal process and review." 1266 Apartment Corp. v. New Horizon

Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004).

Even if we were to consider this dispute in defendants' Appeal

No. 4030-15 from the April 7 order, we would reject it.

Defendants' motion for reconsideration that led to that order did

not request oral argument, and they "cannot now complain on appeal

about being wrongfully denied something [they] never requested."

Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006).

Defendants' earlier motion to reinstate and extend the stay stated

"oral argument is requested only if this motion is opposed," and

it is unclear why oral argument did not occur on February 5. In

any event, as set forth below, the trial court reached the correct

result in denying both motions, and so "we find no prejudice under

the circumstances." Finderne Heights Condo. Ass'n v. Rabinowitz,

390 N.J. Super. 154, 166 (App. Div. 2007); see Triffin v. Am.

Intern. Grp., 372 N.J. Super. 517, 524 (App. Div. 2004).

10 A-1471-15T3
 IV.

We next address defendants' Appeal No. 4030-15, appealing the

April 7, 2016 denial of the motion for reconsideration of the

February 5, 2016 order. "[T]he decision to grant or deny a motion

for reconsideration rests 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). "Reconsideration should

be used only where '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.'"

Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.

Div. 1990)). "Thus, a trial court's reconsideration decision will

be left undisturbed unless it represents a clear abuse of

discretion." Ibid. (citing Hous. Auth. of Morristown v. Little,

135 N.J. 274, 283 (1994)).

Defendants' March 9, 2016 motion sought reconsideration of

"the denial of defendants['] motion for a stay" in the February

5, 2016 order. Defendants had to meet a "'particularly heavy'

burden" to obtain a stay. Guaman v. Velez, 421 N.J. Super. 239,

247 (App. Div. 2011) (citation omitted).

A successful applicant must demonstrate by
clear and convincing evidence that a stay is
necessary to prevent irreparable harm, that

11 A-1471-15T3
 the legal right underlying the claim is
settled, that the material facts are
substantially undisputed, that the applicant
has a reasonable probability of success on the
merits, and that a balancing of the equities
and the hardships weighs in favor of granting
relief.

[Id. at 247-48 (citing Crowe v. De Gioia, 90
N.J. 126, 132-34 (1982) (citation omitted)).]

Defendant cannot show irreparable harm. "Harm is generally

considered irreparable in equity if it cannot be redressed

adequately by monetary damages." Crowe, 90 N.J. at 132-33. Thus,

"claims for injunctive relief cannot normally be maintained where

monetary damages are a sufficient remedy." Med. Soc'y of N.J. v.

AmeriHealth HMO, 376 N.J. Super. 48, 62 (App. Div. 2005).

"[E]quity will leave the parties to a remedy at law if money

damages will adequately compensate for the wrong." Bd. of Educ.

v. N.J. Educ. Asso., 53 N.J. 29, 43 (1968). As the trial court

found, any error in the payment of $81,483.92 to plaintiff, which

had already occurred when defendant made this motion, could be

remedied by the payment of monetary damages.

On appeal, defendants instead argue the trial court

improperly failed to hold a plenary hearing before issuing the

November 4, 2015 order. However, defendants did not seek timely

reconsideration of that order. See R. 4:45-2. In any event, as

set forth above, defendants' argument is meritless.

12 A-1471-15T3
 Defendants' reconsideration motion attached a certification

of defendants' current counsel relating events of which he had no

personal knowledge, and certifications by Cornelius and Versey

Martin stating current counsel's certification was "true to the

best of my knowledge and belief." Thus, none of the certifications

were legally competent under Rule 1:6-6. Estate of Kennedy v.

Rosenblatt, 447 N.J. Super. 444, 456 (App. Div. 2016); Claypotch

v. Heller, Inc., 360 N.J. Super. 472, 488-89 (App. Div. 2003).

Moreover, counsel's certification made factual allegations which

would have been "known to [defendants] prior to the entry of the

order and [thus] were not an appropriate basis for

reconsideration." Palombi v. Palombi, 414 N.J. Super. 274, 289

(App. Div. 2010). In any event, counsel's argumentative

certification did not show that any of the trial court's orders

were founded "'upon a palpably incorrect or irrational basis.'"

Pitney Bowes Bank, Inc., 440 N.J. Super. at 382 (quoting D'Atria,

242 N.J. Super. at 401).

Defendants have not shown the trial court's denial of

reconsideration was a clear abuse of discretion. Defendants'

remaining arguments lack sufficient merit to warrant discussion.

R. 2:11-3(e)(1)(E).

Affirmed.

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