IN THE MATTER OF THE ESTATE OF EDWARD STEVEN OWENS (P-000200-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3708-18T1

IN THE MATTER OF THE
ESTATE OF EDWARD
STEVEN OWENS,
Deceased.
________________________

Argued March 10, 2020 – Decided April 21, 2020

Before Judges Yannotti, Hoffman, and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. P-
000200-16.

Derek Scott Fanciullo argued the cause for appellant
Jose L. Rodriguez (Matsikoudis & Fanciullo, LLC,
attorneys; Derek Scott Fanciullo and William C.
Matsikoudis, on the briefs).

Thomas T. Kim argued the cause for respondents
Miriam Owens, Madison Avery Owens and Steven
Arron Owens (Koulikourdis & Associates, attorneys;
Peter John Koulikourdis and Thomas T. Kim, on the
brief).

PER CURIAM
 The trial court entered an order dated January 18, 2019, which enforced a

mediation agreement between the parties. Defendant Jose L. Rodriguez appeals

from an order dated March 19, 2019, which denied his motion for

reconsideration of the January 18, 2019 order. We affirm.

Edward Steven Owens (Edward) died on August 24, 2012. At the time of

his death, Edward was unmarried. Edward had been married to Miriam Owens

(Miriam), but they divorced in May 2003. He left a last will and testament,

which was admitted to probate by the Surrogate of Bergen County on

September 5, 2012.

In the will, Edward made specific bequests to his children, Steven Arron

Owens (Steven) and Madison Avery Owens (Madison) and distributed his

residuary estate to them in equal shares. Among other things, the will provided

that if either child shall be under the age of twenty-seven years, that child's share

of the residuary estate would be held in trust. Defendant was designated

executor of Edward's estate and trustee of the trusts established for the benefit

of Steven and Madison. The Surrogate issued letters testamentary and of

trusteeship to defendant.

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 On June 2, 2016, Steven and Madison (collectively, plaintiffs) 1 filed a

verified complaint in the Chancery Division, Probate Part. Among other things,

plaintiffs alleged that defendant misappropriated or misapplied estate assets,

filed an inaccurate federal tax return for the estate, overpaid federal estate taxes,

provided incomplete statements for their respective trust accounts, refused to

provide information about the estate's assets, and failed to provide an

explanation for apparent withdrawals from the trust accounts. They claimed

defendant failed to account for more than $200,000, which they alleged was

missing from the estate.

Plaintiffs sought the removal of defendant from his position as executor

of the estate and trustee of their respective trusts, and revocation of the letters

testamentary and of trusteeship that the Surrogate issued to him. Plaintiffs also

sought an order compelling defendant to turn over all financial records

pertaining to the estate and the trust accounts, and to produce an inventory of

the estate's assets. In addition, they sought an accounting of the estate's assets,

along with damages and attorney's fees.

1
The record does not include all of the pleadings; however, it appears that at
some point, Miriam Owens became a party to the action. Plaintiffs' attorney is
also representing Miriam in this case.
A-3708-18T1
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 The parties then participated in mediation. The parties were represented

by counsel. They reached an agreement on the major outstanding issues in

dispute, which were memorialized in a handwritten agreement prepared by the

mediator. The parties and their attorneys signed the agreement, which is dated

December 28, 2017.

The agreement states that defendant resigns as executor and trustee. It

also states that:

[Defendant] will pay the sum of $165,000 to the trust:
[$25,000] by [January 15, 2018]. The balance by a
[$140,000] note with interest at [five percent] with
payment[s] of [$1,000] a month. There will be a
balloon payment [seven] years from this date.
[Defendant] will designate this amount ($140,000)
from his current insurance policy for the benefit of the
trust[s] (or beneficiaries, as the case may be), and
provide proof thereof. The amount due shall be set
forth in a judgment in favor of the trust but may not be
deducted for the amount due less principal payments,
until two consecutive default payments. [Defendant]
agrees he shall not be able to discharge these financial
obligations pursuant to 11 U.S.C. [§] 523(a)(4).

The agreement further provides that the action would be dismissed with

prejudice and without costs, and the parties would exchange mutual releases.

In May 2018, plaintiffs' counsel sent defendant's attorney a proposed

consent order, which incorporated the terms of the mediation agreement and

stated that defendant resigned as executor of the estate and trustee of Steven's

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and Madison's trusts. It also stated that defendant shall turn over to plaintiffs

all monies in their respective trust accounts, along with the financial records and

other information in his possession concerning the estate and the trusts.

The proposed consent order also provided for the appointment of a new

executor and trustee. In addition, the order stated:

The parties agree that the [d]efendant, Jose Luis
Rodriguez, shall give the [p]laintiffs any and all monies
remaining in their respective Trust Accounts as of
December 28, 2017. Additionally, the [d]efendant
agrees to pay the [p]laintiffs the sum of [$165,000] to
be deposited in their Trust Accounts (50/50 each
[p]laintiff) in the form of: a lump sum of [$25,000] by
January 15, 2018. The remaining balance of [$140,000]
shall be paid at a fixed annual percentage rate of 5.00%
with payments of [$1,000] per month, made payable to
[p]laintiffs' Trusts. The parties agree that the
[d]efendant Jose Luis Rodriguez will have a balloon
payment due on December 28, 2024, in the sum of
$98,372.67 pursuant to the amortization scheduled
attached hereto as Exhibit "J-2".

Attached to the consent order was a loan summary, which calculated the

amount due with interest at a rate of five percent, amortized on a monthly basis.

According to the loan summary, there would be monthly payments of $1,000 for

eighty-four months, and the final payment due in December 2024 would be

$97,964.48.

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 On June 27, 2018, plaintiffs' counsel wrote to defendant's attorney. He

noted that despite several requests, he had not received the required proof that

defendant had designated $140,000 from his insurance policy for the benefit of

the trusts, and the proposed consent order had not been executed. He stated that

it appeared the parties "are at a standstill regarding the issue of counsel's fees."

He asked defendant's attorney to have defendant execute the proposed consent

order. Plaintiffs' counsel stated that if defendant refused to do so, he would be

"left with no choice but to file" a motion to enforce the agreement and seek

counsel fees and costs. Defendant did not execute the consent order or provide

proof that he had designated $140,000 of his insurance policy for the benefit of

the trusts.

On August 29, 2018, plaintiffs filed a motion for enforcement of the

mediation agreement, and for attorney's fees and costs. They alleged defendant

had not: executed the consent order provided to his attorney, provided the

required proof regarding his insurance policy, or turned over bank statements

regarding the trust accounts.

Among other relief, plaintiffs sought an order declaring that all provisions

of the agreement shall go into effect immediately, compelling the parties to

comply with the agreement, requiring defendant to resign as executor and

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trustee, and directing defendant to immediately change his life insurance policy

to designate $140,000 for the benefit of the trusts, with proof of that change.

Defendant opposed the motion. He filed a certification stating that he had

arranged for the designation of plaintiffs as beneficiaries of his life insurance

policy in the amount of $140,000. He also stated that he was ready and willing

to comply with the mediation agreement, but claimed plaintiffs were

misinterpreting the provision of the agreement pertaining to the payment of the

$140,000. He claimed he agreed to pay plaintiffs a total of $165,000, but

plaintiffs' calculation "brings the payments" to more than $200,000.

Defendant asserted that the mediator told him the final payment in year

seven would be $56,000. He noted that under the agreement, the first payment

was $25,000, and thereafter he would make monthly payments of $1000 per

month for eighty-four months and a final payment of $56,000, for a total of

$165,000.

The motion judge met with counsel and thereafter entered an order dated

October 19, 2018, which required the parties to return to mediation within forty-

five days "to determine the scope and applicability" of the provision of the

agreement pertaining to the five percent interest on the balance of $140,000,

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which is to be paid over time. The order noted that the issue regarding

defendant's insurance policy had been resolved.

Thereafter, plaintiffs' counsel wrote to the mediator and stated that there

was a dispute regarding the application of the five percent interest on the

$140,000 which is to be paid in monthly installments. Plaintiffs' counsel asked

the mediator to clarify or provide an interpretation regarding the amortization of

the interest on the payments. Counsel stated that, upon receipt of that

clarification or interpretation, he and defendant's attorney were prepared to

return for another mediation session, if necessary.

On November 5, 2018, the mediator replied in an email and stated that he

had been unsuccessful in setting up a telephone conference. However, the

mediator provided his "review" of the provisions of the agreement "respecting

payments." He stated that:

The debt cited in the [December 28, 2017] settlement
sheet ($140,000) carries [five percent] interest that is
amortized on the basis of a $1,000 a month payment,
but which becomes due [December 28, 2024] when a
balloon payment is due and pays off the then existing
balance. You can produce an amortization schedule
from a number of app[lications] on the internet. For
example, when the first monthly $1,000 payment is
made, the interest [at five percent] is $583.33 and so the
principal payment is $416.67. The next month's
payment is allocated $581.60 to interest and $418.40 to
principal, and so on.

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 Plaintiffs' counsel sent the mediator an email thanking the mediator for

his response. He enclosed the amortization schedule that he had previously

provided to defendant's attorney and asked the mediator "if it accurately

summarize[d] the payment schedule." The mediator responded in an email. He

stated that "[t]he schedule you provided is as I described it." Plaintiffs' counsel

then asked defendant's attorney if he would join him in advising the court that

the issue regarding the interest had been "clarified." Defendant's attorney did

not respond.

On December 31, 2018, plaintiffs filed a motion to enforce the mediation

agreement. Defendant opposed the motion. The motion judge heard oral

argument and entered an order dated January 18, 2019, enforcing the agreement.

The order required defendant to make payments in accordance with the

amortization schedule that plaintiffs' counsel had provided to defendant's

attorney.

Thereafter, defendant filed a motion for reconsideration. He argued that

his total liability was $165,000 and the five percent interest was built into the

monthly payments. The judge heard oral argument on March 8, 2019, and filed

an order dated March 19, 2019, denying the motion.

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 In the attached statement of reasons, the judge rejected defendant's

contention that the interest was built into the total liability of $165,000. The

judge found the terms of the agreement were clear and unambiguous and there

was no indication the parties intended the monthly payments would encompass

the interest. The judge wrote, "To the contrary, the settlement agreement

explicitly calls for a [five percent] interest rate on the [$140,000] note on top of

the [$25,000 initial] payment."

The judge noted that, at oral argument on the motion, defendant's attorney

essentially had conceded defendant owed plaintiffs $165,000 and the judge

rejected defendant's contention that the parties agreed defendant would have a

seven-year, interest-free payment plan. The judge commented that defendant's

argument would make some sense if the parties had agreed defendant owed an

amount significantly less than $165,000.

The judge wrote that defendant's contention that the parties agreed to an

interest-free, seven-year payoff "is entirely inconsistent with the terms of the

agreement, which explicitly reference a [five percent] interest rate on the

$140,000.00 note, in addition to a balloon payment due in seven years." The

judge noted that the mediator had provided a further clarification and

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interpretation of the agreement, which confirmed that plaintiffs ' amortization

schedule was consistent with the agreement.

The judge added that there was no reason the matter should be drawn out

further to allow defendant to return to mediation "for the sole purpose of telling"

the mediator and reporting back to court that he is dissatisfied with the

mediator's interpretation of the agreement. The judge concluded that defendant

had not met the high standard for reconsideration of the order enforcing the

agreement. This appeal followed.

On appeal, defendant argues that the March 19, 2019 order denying

reconsideration should be reversed. He contends the judge erred by considering

the statement of the mediator, which was not permitted by Rule 1:6-6. He argues

that the judge disregarded credible evidence, the mediator's statement violated

New Jersey law, and the order requiring him to make payments in accordance

with the amortization schedule should be vacated. Defendant contends that, at

a minimum, the matter should be remanded to the trial court for a plenary

hearing.

"Motions for reconsideration are governed by Rule 4:49-2, which provides

that the 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

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Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Reconsideration is only

appropriate in those cases "that fall within that narrow corridor in which either

(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." Capital

Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.

Div. 2008) (alterations in original) (quoting D'Atria v. D'Atria, 242 N.J. Super.

392, 401 (Ch. Div. 1990)).

On appeal, "a trial court's reconsideration decision will be left undisturbed

unless it represents a clear abuse of discretion." Pitney Bowes Bank, 440 N.J.

Super. at 382 (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283

(1994)). "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.'" Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171

N.J. 561, 571 (2002)).

The construction of a contract is a question of law. Kieffer v. Best Buy,

205 N.J. 213, 222-23 (2011) (citing Jennings v. Pinto, 5 N.J. 562, 569-70

(1950)). We review the trial court's interpretation of a contract de novo. Id. at

222 (citing Jennings, 5 N.J. at 569-70). Furthermore, "[a] trial court's

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interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp.

Comm., 140 N.J. 366, 378 (1995).

When construing a contract, our objective is to determine the intent of the

parties. Kieffer, 205 N.J. at 223 (citing Mantilla v. NC Mall Assocs., 167 N.J.

262, 272 (2001)). Generally, we give the terms of a contract their plain and

ordinary meaning. Ibid. (citing M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171

N.J. 378, 396 (2002)). The court should not under the guise of interpretation

make for the parties a different or better contract than they have made for

themselves. Ibid. (citing Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001)).

Here, the trial court found the relevant provision of the mediation

agreement is clear and unambiguous. As noted, the agreement requires

defendant to make an initial lump sum payment of $25,000, and to pay the

remaining $140,000 "with interest at [five percent]" in monthly installments of

$1000 for seven years, along with a final balloon payment. As the motion judge

pointed out, the terms of the agreement do not support defendant's claim that he

is only required to pay a total of $165,000, and that this amount includes interest

at five percent.

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 In his statement of reasons, the judge noted that there is nothing in the

agreement which suggests the parties agreed defendant would pay the balance

of $140,000 in monthly installments over seven years without any interest.

There is also nothing in the agreement indicating that the parties agreed

defendant would only be required to pay $165,000, and that the $165,000

included interest at five percent.

Indeed, as the judge pointed out, at oral argument, counsel for defendant

conceded that defendant's accountant had determined defendant owed the

plaintiffs $165,000. The judge observed that defendant's argument might make

sense if the parties had agreed defendant owed plaintiffs substantially less than

$165,000. There is no indication that they reached such an agreement.

Thus, the record does not support defendant's contention that he would

have a seven-year, interest-free loan of $140,000. If that is what the parties

intended, the agreement would have explicitly stated that the $140,000 would

be paid in monthly installments, without any additional interest.

Defendant contends that the motion judge erred by failing to consider his

contention that the mediator told him the balloon payment would only be

$56,000. He also contends the related provision pertaining to his insurance

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policy shows that the parties agreed his total liability would be $165,000, and

he would not have to pay interest on the $140,000.

However, there is nothing in the agreement which states that the parties

agreed defendant's balloon payment would only be $56,000. The plain terms of

the agreement reflect that the balloon payment would consist of the unpaid

balance with interest at the agreed-upon rate of five percent.

Moreover, while the parties agreed to allocate only $140,000 of

defendant's life insurance policy for the benefit of the trusts, that provision does

not support the contention that defendant had no obligation to pay interest on

the balance due over a seven-year period. To the contrary, the agreement

expressly provides for $140,000 in monthly installments, over a seven-year

period, "with interest" at five percent.

Defendant further argues that the motion judge erred by considering the

mediator's statements clarifying the agreement. Defendant contends plaintiffs'

counsel improperly included those statements in the certification he filed in

support of the motion to enforce the agreement. He contends the mediator's

statements regarding the interpretation of the agreement and the amortization

schedule were inadmissible hearsay. He also contends the mediator's statements

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were not permitted under the Uniform Mediation Act, N.J.S.A. 2A:23C-1

to -13.

We need not address these arguments. We are convinced that even if the

trial court erred by considering the mediator's comments regarding the

agreement and the amortization schedule, the error was harmless. As we have

explained, the motion judge chose to enforce the agreement in accordance with

its plain language and the record supports that determination.

Where, as here, the terms of a contract are clear and unambiguous, there

is no room for interpretation and the court must enforce the agreement as written.

Schor v. FNS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) (citing

Karl's Sales and Serv., Inc. v. Gimbel Bros. Inc., 249 N.J. Super. 487, 493 (App.

Div. 1991)). The mediation agreement plainly requires defendant to pay interest

at five percent on the outstanding $140,000, and the amortization schedule

provided by plaintiffs was entirely consistent with that obligation.

Whether the mediator agreed or disagreed with this interpretation of the

agreement is of no moment. The issue was one for the court to resolve as a

matter of law, and it did so correctly. We conclude the trial court did not

mistakenly exercise its discretion by denying defendant's motion for

reconsideration.

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 We have considered defendant's other arguments and conclude they lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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